Yale Journal of International Law
Volume 28
Issue 2 Yale Journal of International Law
Article 11
2003
Sustainable Development is Security: The Role of
Transboundary River Agreements as a Confidence
Building Measure (CBM) in South Asia
James Kraska
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Sustainable Development Is Security:
The Role of Transboundary River
Agreements as a Confidence Building
Measure (CBM) in South Asia
James Kraskat
I.
INT ROD UCTION.............................................................................................................................
465
II.
CONFIDENCE BUILDING MEASURES .............................................................................................
A.
The O SCE Experience.....................................................................................................
B.
Verification and Assurance .............................................................................................
Procedural and Substantive Compliance ........................................................................
C.
468
469
473
475
IMl.
THE H YDROPOLITICS IN SOUTH ASIA ...........................................................................................
477
Security Politics in South A sia ........................................................................................
The Indus and the G anges Rivers ....................................................................................
478
480
TRANSBOUNDARY RIVER AGREEMENTS IN SOUTH ASIA ..............................................................
483
The Indus and the Ganges Treaties.................................................................................
484
CBM s ......................................................................
Environmental Causes of War... and Peace.................................................................
Confidence Building on the Indus and the Ganges .........................................................
Are TransboundaryRiver Agreements Effective? ...........................................................
488
489
491
496
A.
B.
IV.
A.
V.
TRANSBOUNDARY RIVER AGREEMENTS AS
A.
B.
C.
VI.
C ONCLUSIO N................................................................................................................................
I.
500
INTRODUCTION
Over the last decade, scholars have closely examined the link between
environmental change and conflict and security.' Severe deforestation, soil
erosion, soil salinization and waterlogging, toxic contamination, drought and
flooding, and air and water pollution are some of the environmental calamities
that can increase international tension, and even lead to war. The opposite is
t
Deputy Legal Advisor, Deputy Chief of Naval Operations for Plans, Policy, and
Operations in the Pentagon; Guest Investigator at the Marine Policy Center, Woods Hole Oceanographic
Institution (WHOI), Woods Hole, Massachusetts. An earlier version of this article was presented at the
Academic Council on the United Nations/American Society of International Law (ACUNS/ASIL)
Summer Workshop on International Organization Studies, "Strategies for Sustainable Resource
Development: Policy and Practice," at the University of Namibia, Windhoek, Namibia, and
Johannesburg, South Africa, from August 17-31, 2002. The author thanks ACUNS/ASIL for funding
this research, and also thanks Professors Alexandre Kiss and Dinah Shelton of ACUNS/ASIL
Workshop, and Dr. Andrew Solow, Director of the Marine Policy Center, WHOI, for their thoughtful
and constructive reviews. The views presented are those of the author and do not necessarily represent
the views of the U.S. Department of Defense or its Components.
1.
See, e.g., CoNFLICT AND THE ENVIRONMENT (Nils Petter Gleditsch ed., 1997);
ECOvIOLENCE: LINKS AMONG ENVIRONMENT, POPULATION, AND SECURITY (Thomas Homer-Dixon &
Jessica Blitt eds., 1998); THOMAS F. HOMER-DIXON, ENVIRONMENT, SCARCITY, AND VIOLENCE (1999);
Gunther Baechler, Why Environmental Transformation Causes Violence: A Synthesis, ENVTL. CHANGE
& SEC. PROJECT REPORT, 1998, at 24.
THE YALE JOURNAL OF INTERNATIONAL LAW
[Vol. 28:465
also true, but this approach has received scant attention. Environmental
conservation and cooperation can have a reverse effect by generating greater
security, reducing regional tension, and avoiding conflict. Complementing
the extensive research linking environmental degradation to military
insecurity, this Article embraces a different model by maintaining that
international agreements to protect the environment tend to build confidence
and, thereby, strengthen regional security.
The hydrology and security politics of South Asia are dissected against
the backdrop of two major transboundary rivers in the region. The two
rivers-the Indus and the Ganges-are primary sources of freshwater for
hundreds of millions of people living on the Indian subcontinent. 3 The human
need for freshwater is overwhelming, constant, and immediate: it is the only
scarce resource for which there is no substitute.4 The lack of adequate
freshwater is becoming a global calamity, and South Asia is among the most
water-stressed regions on the planet. U.N. Secretary-General Kofi Annan
reports that, "No single measure would do more to reduce disease and save
lives in the developing world than bringing safe water and adequate sanitation
to all." 5
This Article employs two case studies of transboundary rivers on the
Indian subcontinent to demonstrate that international river agreements serve
not only to protect the environment and promote sustainable development, but
also affect security throughout the basin. Moreover, these agreements tend to
stabilize and enhance security at the regional level. The security return
generated is independent of the concrete ecological and economic benefits
produced by such agreements. Familiar law and policy debates surrounding
international river agreements are recast by introducing their function as a
confidence building measure (CBM) in reducing tension and preventing war
throughout the river basin. 6 The bilateral basin treaties governing the Indus
2.
For one study that does acknowledge a correlation between improving the environment
and enhancing regional security, see Richard A. Matthew & Asif Zaidi, People, Scarcity and Violence in
Pakistan, in CONSERVING THE PEACE: RESOURCES, LIVELIHOODS AND SECURITY 57, 62 (Richard
Matthew et al. eds., 2002).
3.
This study uses the terms "international river basin" and "international river watershed"
interchangeably to mean the entire catchment and drainage basin of a river that is shared by two or more
states. See generally James L. Wescoat, Jr., Beyond the River Basin: The Changing Geography of
InternationalWater Problemsand International Watercourse Law, 3 COLO. J. INT'L ENVTL. L. & POL'Y
301, 301-32 (1992).
4.
WORLD COMM'N ON WATER FOR THE TWENTY-FIRST CENTURY, COMMISSION REPORT:
WATER SECURE WORLD: VISION FOR WATER, LIFE, AND THE ENVIRONMENT 3 (2000) [hereinafter WATER
SECURE WORLD] ("Water is a fundamental need. All human beings, including the poor and
marginalized, must have access to water."). See also Aaron T. Wolf, IndigenousApproaches to Water
Conflict Negotiations and ImplicationsforInternationalWaters, 5 INT'L NEGOTIATION 357, 358 (2000).
5.
KoFI A. ANNAN, UNITED NATIONS, 'WE THE PEOPLES': THE ROLE OF THE UNITED
NATIONS IN THE TWENTY-FIRST CENTURY 60 (2000), http://www.un.org/millennium/sg/report/full.htm.
In recognition of the central importance of freshwater to the planet's future, the UN General Assembly
proclaimed 2003 the International Year of Freshwater. G.A. Res. 55/196, U.N. GAOR, 55th Sess., U.N.
Doc. A/RES/55/196 (2001).
6.
The term CBM was first used in the Organization for Security and Cooperation in
Europe's Basket I of the 1975 Helsinki Final Act where States agreed to certain measures designed to
reduce the dangers of armed conflict and miscalculation or misunderstanding of military activities that
could give rise to apprehension. Conference on Security and Cooperation in Europe, Final Act, Aug. 1,
1975, 14 I.L.M. 1292, 1293-99 (1975). This Article uses the traditional term "confidence building
measure" (CBM) and the newer term "confidence and security building measure" (CSBM)
20031
SustainableDevelopment Is Security
and Ganges Rivers in South Asia serve to illustrate how resource and
environmental agreements between political and military rivals ameliorate
tension, enhance stability, and decrease the chances of theater war.
The very process of reaching accommodation and developing bilateral
resource and environmental mechanisms for cooperation creates a stabilizing
and more transparent atmosphere. Negotiation widens political participation,
builds political stability, and spreads confidence between the basin states.
Unfortunately, scholars and policy-makers have been slow to recognize, or
have entirely failed to appreciate, the functional utility of transboundary river
agreements to build confidence between parties. These positive security
effects have gone unrecognized, largely because the study of transboundary
river agreements remains the domain of resource economists, water
technicians and specialists, and environmental activists, lawyers, and scholars,
rather than those with a focus on arms control, defense policy, and
international security. This Article identifies and captures for closer analysis
the security benefits of international river agreements, particularly as they
apply in South Asia. South Asia consists of a politically volatile regional
security equation percolating against the backdrop of a delicate and
chronically stressed natural environment. India, Pakistan, Bangladesh, and the
major rivers they share, present an ideal (although not exclusive) venue for
this analysis.7
This study explores the call from the World Commission on Water for
the twenty-first century:
Among the helpful ways of thinking about this problem is to note that issues of water
quantity and the sharing of total resources can be a cause of competing claims and
conflict. Thus, dealing with conflict avoidance and the possible use of ombudsman or a
mediation panel should be considered in mature relationships between ripariansrelationships that usually involve many other facets beyond water sharing. In limited
relationships it may be necessary to conceive of confidence-building measures and
postpone any firm decisions on the long-term issues until the relationship matures.8
In Part II, the Article discusses confidence building measures generally,
defining what they are and explaining how they build confidence and reduce
tension. Europe has had the most experience in developing and refining
CBMs, and that is the point of departure for their review. CBMs entail
creative methods of developing verification and assurance, and states'
procedural compliance may be just as important as substantive compliance.
These mechanisms will be found to be under-utilized in the context of
environmental issues. Their enlargement and expansion to include
transboundary river agreements will be developed in Part V.
Part III introduces the hydrology of the Indus and Ganges river systems
of South Asia. The rivers Indus and Ganges, and their tributaries and streams,
dominate the hydrological landscape, and are woven into the political fabric of
synonymously.
7.
The Jordan, Nile, Mekong, Syr Darya, Amazon, and Tigris-Euphrates river basins are
among those deserving future inquiry.
8.
WATER SECURE WORLD, supra note 4, at 30.
THE YALE JOURNAL OF INTERNATIONAL LAW
[Vol. 28:465
the Indian subcontinent. They directly affect, and even control, the lives of
hundreds of millions of people.
Part IV turns toward the hallmark agreements of transboundary river
cooperation in South Asia-the Indus Waters Treaty between India and
Pakistan and the Bangladesh-India Treaty governing the flow of the river
Ganges. The Indus Waters Agreement was signed in 1960 and has been a
cornerstone of Indian-Pakistani diplomacy ever since. The Ganges Treaty of
1996 resolved long-standing disagreements.
Part V sets forth how transboundary river agreements serve as
confidence building measures to reduce tension and prevent war, and offers
specific examples of their success in South Asia. For instance, the success of
the negotiations for the Indus Waters Treaty precipitated negotiations on the
Siachen Glacier conflict that nearly ended the perennial war. Throughout two
wars and numerous clashes and diplomatic crises between India and Pakistan,
the continued functioning of the Indus Waters framework has been the sole
reliable working bilateral relationship.
II.
CONFIDENCE BUILDING MEASURES
By exploring one significant component of classical arms controlconfidence building measures-and fusing it with the concerns of
transboundary river riparians within the context of South Asia, I suggest a
new model that assists rivals in reducing regional tension and preventing the
outbreak of war.9 Enlarging the purpose of the agreement, riparians can thus
extend the benefits of a treaty more broadly throughout their relationship. This
helps to cement ties and build interdependence.
There is no single mold from which all CBMs are cut, and theories on
their usefulness approach them from a number of vantage points: (1) they tend
to restrain nations in exchange for restraint from other nations; (2) they
encourage rational behavior by building certainty and dispelling uncertainty;
(3) they buy time to prevent surprise; (4) they provide "rules of the road" for
crisis management; (5) they provide assurances and reassurances by reflecting
the belief that increasing familiarity at all levels makes conflict less likely; and
(6) they diffuse coercion directed against member states.' 0 CBMs may meet
one, or all, of these criteria. More broadly, CBMs may be viewed as
"arrangements designed to enhance such assurance of mind and belief in the
trustworthiness of state and the facts they create.""
9.
This concept is independent from, but acknowledges the initial and valuable contribution
of the "Fire and Water" Workshop of October 2001 in considering the relationship between the fields of
arms control and water management. The "Fire and Water" workshop was hosted by the Pacific Institute
for Studies in Development, Environment and Security, the Department of Geosciences of Oregon State
University, and the Cooperative Monitoring Center (CMC) at Sandia National Laboratory. With support
from the Carnegie Corporation of New York, the workshop participants contrasted the fields of arms
control and transboundary water resources. For the workshop's report, see Elizabeth L. Chalecki et al.,
Fire & Water: An Examination of the Technologies, Institutions,and Social Issues in Arms Control and
Transboundary Water Resources Agreements, ENVTL. CHANGE & SEC. PROJECT REP., 2002, at 125 (on
file with author).
10. Ronald F. Lehman II, Measures To Reduce Tension and Prevent War, in NATIONAL
SECURITY LAW 641, 642-45 (John Norton Moore et al. eds., 1990).
11.
Johan Jorgan Hoist, Confidence-Building Measures: A Conceptual Framework, 25
SustainableDevelopment Is Security
20031
There is no universally accepted definition of a CBM; the term
constitutes a basket of concepts rather than a discrete tool. CBMs generally
may be regarded as measures designed to enhance mutual knowledge and
understanding in order to reduce security tensions. 12 The Henry L. Stimson
Center, which has been studying worldwide application of CBMs for over a
decade, defines them as "diverse national security tools, such as hot lines,
people-to-people exchange, prior notification of exercises and cross-border
economic projects that can help defuse tension, resolve misunderstanding, and
promote cooperation to address security concerns."' 3 They are intended to
anticipate and dampen potential crises before they cross the threshold Rubicon
to war. Long a feature of the superpower relationship and the European
security experience, the United Nations system has recently begun to
emphasize preventive measures in circumstances outside great power
14
relationships in order to calm simmering conflicts before they turn violent.
While there is considerable overlap among preventive measures, CBMs
occupy a distinct class therein that work by distributing information among
parties to a conflict. This distribution of knowledge brings transparency to an
otherwise opaque relationship.
Other preventive measures include disaster relief, supervised selfdetermination, peacekeeping, good offices, peacemaking, promotion of human
rights, and promotion of economic development, but at the heart of all CBMs
is the introduction of mechanisms to eliminate the obscurity that fuels
suspicion among rivals.15 Lack of information about a rival's intentions,
motives, and future plans tends to generate the greatest amount of suspicion
and mistrust. When foreign relations are evenly and liberally endowed with
information among the concerned parties, the ensuing transparency tends to
strengthen the relationship. This is true even if the parties still "agree to
disagree" on the underlying substantive issues. Transparency builds
confidence, and mutual confidence reduces tension. The concept of CBMs
arose in Central Europe during the Cold War, where confidence building
quietly but effectively transformed the bipolar relationship.
A.
The OSCE Experience
Even before World War II, CBMs were closely associated with
initiatives in diplomacy, defense policy, and international law, in the form of
arms control. Sharing information and avoiding certain practices reduced the
possibility of accidental war, miscalculation, or the failure of rapid
communication, and increased stability in times of both normal circumstances
SURVIVAL 2 (1983).
12.
13.
Lehman II,
supranote 10, at 641.
Benjamin L. Self & Ranjeet K. Singh, Introduction to INVESTIGATING CONFIDENCE
BUILDING MEASURES IN THE ASIA-PACIFIC REGION, at iv (Ranjeet K. Singh ed., Henry L. Stimson Center
Report No. 28, 1999).
14. See generally Report of the Secretary-General on the Work of the Organization, U.N.
GAOR, 50th Sess., Supp. No. 1,paras. 581-96, U.N. Doc. A/50/1 (1995).
15.
See Lilly R. Sucharipa-Behrmann & Thomas M. Franck, Preventive Measures, 30 N.Y.U.
J. INT'L L. & POL. 485, 486-92 (1998).
THE YALE JOURNAL OF INTERNATIONAL LAW
[Vol. 28: 465
as well as crises. 16 After World War 11, a whole class of CBMs emerged onto
the political landscape of Central Europe in order to relax the superpower
rivalry. As the Cold War matured, CBMs lay at the center of the U.S.-Soviet
relationship. In 1981, Ronald Reagan called CBMs one of the most effective
and important arms control objectives of the United States.' 7 The Conference
on Security and Cooperation in Europe (CSCE), which was initially little
more than a "talk shop" mechanism for dialogue, grew out of the Helsinki
Final Act of 1975. Twenty-five years later, CSCE has matured into an
umbrella organization sponsoring such activities as the Organization for
Security and Cooperation in Europe (OSCE). OSCE now has fifty-five
member states, including Russia and the United States as full members, which
makes it the largest regional security organization in the world.' 8 The OSCE
defines CBMs as "provisions for the exchange and verification of information
regarding the participating States' armed forces and military activities, as well
as certain mechanisms promoting co-operation among participating States
with regard to military matters."1 9 Examples of CBMs include:
" Annual exchange of military information
" Risk reduction measures (e.g., mechanisms for consultation and
cooperation as regards unusual military activities)
" Provisions regarding military contacts and cooperation
" Prior notification of certain military activities
" Observation of certain military activities
" Exchange of annual calendars of military activities
* Constraining provisions on military activities
* Compliance and verification measures
* Networks of direct communications between the various capitals
* Annual implementation assessment meetings
* Global exchange of military information
" Stabilizing measures for localized crisis situations
20
" Principles governing arms transfers
The aim of the OSCE measures was to "promote mutual trust and dispel
concern about military activities by encouraging openness and
transparency. '2 1 These programs accomplished this goal in both the
conventional and nuclear sphere by distributing relevant military information
throughout Central Europe. 22 The CBMs negotiated at Helsinki, however,
16.
17.
U.S. DEP'T OF STATE, SECURITY AND ARMS CONTROL 75 (1984).
Ronald Reagan, U.S. Program for Peace and Arms Control, Speech to the National Press
Club (Nov. 18, 1981), in U.S. DEP'T OF STATE, REALISM, STRENGTH, NEGOTIATION: KEY FOREIGN
POLICY STATEMENTS OF THE REAGAN ADMINISTRATION 23-26 (1984).
18.
ORGANIZATION FOR SECURITY AND CO-OPERATION IN EUROPE, OSCE HANDBOOK 169-70
(Walter Kemp et al. eds., 3d ed. 1999), http://www.osce.org/publicationsihandbook/files/handbook.pdf
[hereinafter OSCE HANDBOOK].
19. Id. at 120.
20. Id.
21.
Id.
22. The current provisions in Europe evolved from three separate and evolving regimes: The
Helsinki Act (1975-1986), the Stockholm Document (1986-1990) and the Vienna Document (1990-
SustainableDevelopment Is Security
20031
23
only covered territory extending 250 km into the Soviet Union. The 1986
Stockholm Review Conference extended the notification requirements to
incorporate smaller exercises and maneuvers, and imposed a notice
requirement for the largest exercises. 24 Stockholm also permitted onsite
observers and authorized challenge inspections in the event of a suspected
breach of the agreement. For the first time ever, compulsory inspections were
included in a verification regime. The Vienna Document regime, 25 which was
negotiated in parallel with the Conventional Armed Forces Europe (CFE)
negotiations, yielded the Vienna Document 1990 on CSBMs.26 The document
was updated and broadened in 1992 by introducing emergency meetings to
clarify suspicious activities, installing computerized information-sharing
an agreement to hold annual implementation
networks, and concluding
27
meetings.
assessment
The CBMs contained in the earlier OSCE agreements were extended by
the United States and the Soviet Union late in the Cold War, culminating in
the 1988 Intermediate Nuclear Forces Treaty (INF). 28 INF required, for the
first time, extensive onsite inspection of the destruction of a whole class of
theater-range nuclear weapons, including ballistic missiles, launchers, and
facilities. 29 The INF Treaty also introduced the concept of challenge
inspections-a tool that has since become a feature of multilateral agreements
such as the Chemical Weapons Convention.3 °
1999). A key provision of the 1975 Helsinki Final Act required advanced notice of large military
maneuvers in Central Europe. See Conference on Security and Co-operation in Europe: Final Act, Aug.
1, 1975, 14 I.L.M. 1292, 1298 (1995).
23.
Conference on Disarmament in Europe, DEP'T OF STATE BULL., Mar. 1984, at 43.
24. Document of the Stockholm Conference on Confidence- and Security-Building Measures
and Disarmament in Europe, Sept. 19, 1986, entered into force Jan. 1, 1987, 26 I.L.M. 190 (1987).
25. The specific Vienna Documents for 1990, 1992, 1994, and 1999 are all available via the
OSCE website. See http://www.osce.org.
26. Vienna Document 1990: Of the Negotiations on Confidence- and Security-Building
Measures Convened in Accordance with the Relevant Provisions of the Concluding Document of the
Vienna Meeting of the Conference on Security and Co-operation in Europe (Nov. 17, 1990), reprinted in
SIPRI YEARBOOK 1991: WORLD ARMAMENTS AND DISARMAMENT 475 (Billie Bielcleus et al. eds.,
1991).
27.
The terms of these agreements were further strengthened by the results of the Forum for
Security Cooperation (FSC), which produced the Vienna Document 1994. The 1994 agreement lowered
the threshold for notification and advisement, and added provisions for military planning and extensive
points of contact. Organization for Security and Cooperation in Europe, Budapest Summit Declaration
on Genuine Partnership in a New Era, Dec. 6, 1994, 34 I.L.M. 764, 773-76 (1995). At the November
1999 summit in Istanbul, negotiators fashioned the Vienna Document 1999, which entered into force on
January 1, 2000. The 1999 Document unified the earlier Vienna agreements, and added an additional
chapter on regional measures. Organization for Security and Cooperation in Europe, Charter for
European Security, Nov. 19, 1999, 39 I.L.M. 255, 266-67 (2000). The new chapter encouraged states to
seek additional politically or legally binding bilateral and multilateral measures within the spirit of the
Vienna Document as a complement to the primary regime. The additional chapter also sought to extend
the benefits of transparency and confidence enshrined in the earlier documents by encouraging bilateral
side agreements.
28. Treaty on the Elimination of Intermediate-Range and Shorter-Range Missiles, Dec. 8,
1987, U.S.-U.S.S.R., S. TREATY Doc. No. 100-11, at 67 (1988).
29. See id. art. XI(1) (right to conduct on-site inspections); id arts. X(2), XI(3)-(8) (on-site
inspections); id art. XI(6) (monitoring of specified facilities).
30.
Part IX and X, Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and on Their Destruction, 32 I.L.M. 800, 862-69 (1993); see
also Amy Sands & Jason Pate, CWC Compliance Issues, in MONTEREY INST. INT'L STUD., THE
CHEMICAL WEAPONS CONVENTION: IMPLEMENTATION CHALLENGES AND SOLUTIONS 17,18-19 (Jonathan
THE YALE JOURNAL OF INTERNATIONAL LAW
[Vol. 28:465
The intrusive monitoring regime of INF later was implemented in two
1991 agreements: the Treaty on the Reduction and Limitation of Strategic
Offensive Arms (START) 3 1 and the Treaty on Conventional Armed Forces in
Europe (CFE).32 In ten years, CFE had imposed legally binding limits on five
classes of Treaty Limited Equipment (TLE), destroying or removing 50,000
pieces of military equipment in Central Europe. Between 1990 and 2000
more than 3,000 CFE-associated inspections, exchanges, and notifications had
taken place.34 With the advent of INF, START, and CFE, onsite inspection
and monitoring and assurance-oriented strategies had finally displaced
external and national technical means of verification as the primary
mechanism for ensuring arms control compliance. 35 The acme of inclusive
arms control regimes incorporates a web of verifications and assurances that
integrate external monitoring with national technical means, supported by data
exchanges, notification obligations, and limitations on geography, to produce
a zone of openness. Due to the increased detail of verification and assurance
procedures, arms control agreements have grown geometrically in size and
complexity. 36 Interestingly, the only exception to this trend is the most recent
short agreement signed by President George W. Bush and Russian President
Vladimir Putin to limit strategic nuclear weapons for each nation to 17002200 warheads.37
Rather than addressing platforms and hardware, other CBMs merely
establish mechanisms for communications between states. Establishing new
methods of state-to-state communication can serve as a means for routine
coordination, as well as a channel for resolving ambiguity and promoting
understanding during crises. One of the earliest and perhaps most interesting
of these devices is the U.S.-U.S.S.R. Direct Communication Link (DCL)known as the "Hotline. ' 38 The Hotline was established in 1963 and updated
twice.39 Captured on film and memorialized in popular culture, the Hotline
B. Tucker ed., 2001) (describing and updating regime of challenge inspections under the CWC).
31.
Treaty on the Reduction and Limitation of Strategic Offensive Arms, July 31, 1991, U.S.U.S.S.R., S. TREATY Doc. 102-20, at 1 (1991).
32. Treaty on Conventional Armed Forces in Europe, Nov. 19, 1990, S.TREATY Doc. No.
102-8, at 223 (1991).
33.
REPORT ON OPTIONS FOR CONFIDENCE AND SECURITY BUILDING MEASURES (CSBMs),
VERIFICATION, NON-PROLIFERATION, ARMS CONTROL AND DISARMAMENT
13 (Dec. 2000),
http://www.nato.intl/docu/pr/2000/pOO-121 e/rep-csbm.pdf.
34. Id.
35.
Kenneth W. Abbott, "Trust But Verify": The Production of Information in Arms Control
Treaties and Other InternationalAgreements,26 CORNELL INT'L L.J. 1, 36-37 (1993).
36.
Antonia H. Chayes & Abram Chayes, From Law Enforcement to Dispute Settlement: A
New Approach to Arms Control Verification and Compliance, INT'L SEC., Spring 1990, at 147, 155.
37.
The agreement is only two pages long. Although it appears to have radically reversed the
trend toward ever longer and more complex international arms control agreements, it is likely that
subsequent implementing agreements will contain specific particulars. Strategic Offensive Reductions
Treaty, U.S.-Russ., May 24, 2002, 41 I.L.M. 799. The short length of the Moscow Treaty delegated the
details of the agreement to subordinates and the defense establishment in each country, and is at least
partly driven by the increased trust and confidence established between the two nations in the preceding
agreements.
38.
The Direct Communication Link (Hotline) provided a full-time teletype network between
Washington, D.C. and Moscow. See Memorandum of Understanding Regarding the Establishment of a
Direct Communication Link, June 20, 1963, U.S.-U.S.S.R., 14 U.ST. 825 (1963). The value of the
Hotline has been widely acknowledged. See, e.g., Lehman I1,
supra note 10, at 648.
39.
Agreement Between the United States of America and the Union of Soviet Socialist
20031
SustainableDevelopment Is Security
40
served as the model for crises communications. The concept of the Hotline
was later expanded into more comprehensive communications centers in the
late-1980s. The START and INF regimes unveiled the creation of Nuclear
Risk Reduction Centers to transmit notifications and provide a mechanism for
secure communications.4 1
B.
Verification andAssurance
Information that builds confidence may be produced by two strategies:
verification and assurance. 42 The strategy of verification, also called
monitoring, 43 involves the unilateral application of each party's efforts and
4
resources to seek out the information it requires from others. Verification
has become a hallmark of arms control and other international agreements.
Nations have implemented a variety of fact-finding methods to decipher other
states' actions and intentions. 45 Verification may involve overt mining of
public data, submitting an informal diplomatic query or even a formal
demarche, external observation of other states' activities, and covert
intelligence and overhead imagery collection or other means of remote
sensing. Partner nations may make agreements that greatly enhance the
effectiveness of verification regimes by permitting aircraft over-flight, on-site
inspection, and the broadcast of unencrypted missile telemetry for verifying
ballistic missile agreements. Effective verification often requires intrusive
measures, such as on-site reciprocal inspection.
By committing to an international river CBM agreement, a nation
accepts restrictions on its freedom of action in exchange for increased
confidence of its neighbors and an increase in the transparency of their
actions. Many nations warily eye any agreement that is perceived as eroding
the principle of state sovereignty, which is upheld in the U.N. Charter. 46 The
sovereignty principle reinforces the notion that on-site verification might
interfere with legitimate state activities. Some nations may be unable to reach
an agreement that permits on-site verification or monitoring out of fear that
information unrelated to the underlying agreement might be disclosed. For
decades, the Soviet Union rejected empirical on-site and overhead remote
sensing verification measures as "legalized espionage. 4 7 International norms,
Republics on Measures to Improve the U.S.-U.S.S.R. Direct Communications Link, Sept. 30, 1971, 10
I.L.M. 1174 (1971); Memorandum of Understanding on the Direct Communications Link, July 17,
1984, U.S.- U.S.S.R., 23 I.L.M. 1393 (1984).
See, e.g., DR. STRANGELOVE, OR: How I STOPPED WORRYING AND LEARNED To LOVE THE
40.
BOMB (Columbia Pictures 1964) (parodying hotline negotiations between the U.S. President and his
Soviet counterpart).
41.
Agreement on the Establishment of Nuclear Risk Reduction Centers, Sept. 15, 1987, U.S.U.S.S.R., 27 I.L.M. 76 (1988).
42. Abbott, supra note 35, at 4.
The terms "verification" and "monitoring" have been used interchangeably in arms
43.
control, and are used interchangeably here. See, e.g., Stefan Oeter, Inspection in InternationalLaw:
Monitoring Compliance and the Problem of Implementation in InternationalLaw, 28 NETH. Y.B. INT'L
L. 101,164 (1997).
44. Abbott, supranote 35, at 4.
45. See Robert J. Einhom, Treaty Compliance, FOREIGN POL'Y, Winter 1981-82, at 30.
U.N. CHARTER art. 2(7).
46.
47. See generally Alan S. Krass, Verification and Trust in Arms Control, 22 J. PEACE
THE YALE JOURNAL OF INTERNATIONAL LAW
[Vol. 28: 465
however, are weakening the historical notion of absolute state sovereignty,
making possible new forms of greater cooperation that are more open to
intrusive monitoring. Within the context of CBMs, the definition of
sovereignty is evolving to accept greater intrusion into domestic affairs to
achieve multilateral integration.4 To remain viable, the existence of measures
from neighboring states or bilateral or multilateral organizations should
produce benefits to the accepting state that are outweighed by the perceived
price to their sovereignty. 9
On-site inspection has become one of the most effective methods of
verifying compliance of international agreements, but it has rarely been
employed outside the context of military agreements due to state sensitivities
regarding sovereignty. 50 With the attribution of transboundary river
agreements to the political and military stability of the basin, however, there is
promise to extend the benefits of traditional arms control verification to
agreements. Such methods include verification and remote
environmental
51
sensing.
Assurance is a strategy whereby each nation gathers and provides
information about itself to other states.5 z Under assurance, nations have an
affirmative obligation to deliver to partner states useful, specific information.
This information may include otherwise confidential internal documents,
physical evidence, or simple or complex certifications. 53 Participation in
assurance or acquiescence in active monitoring conveys to other parties that
one is complying with one's obligations. Assurance is interactive; states
recognize their partner nations' legitimate information needs, and they
manifest a clear willingness and capability to provide that information. In
receiving assurances, states set forth the parameters of the scope and type of
the information they are seeking.54 This consultative element to assurances
tends to broaden and deepen the relationship between parties because it
generates unscripted interaction.
Procedures designed to produce assurance need not be elaborate and
may consist merely of self-reporting. Self-reporting is a simple and
widespread method of reporting in which a state gathers and presents evidence
about its own activities to other states to the agreement. Reporting has become
RESEARCH 285 (1985); V.S. Vereshchetin, International Control and the Concept of 'Open Skies,' in
FROM COEXISTENCE TO COOPERATION: INTERNATIONAL LAW AND ORGANIZATION IN THE POST-COLD
WAR ERA 31, 31 (Edward McWhinney et al. eds., 1991).
48. Sucharipa-Behrmann & Franck, supra note 15, at 537.
49. Id.
50. See generally William R. Moomaw, InternationalEnvironmental Policy and the Softening
of Sovereignty, 21 FLETCHER F. WORLD AFF. 7 (1997).
51.
Remote sensing has been used for military reconnaissance and arms control verification
since the Cold War. During the 1960s, remote sensing became a tool of the scientific community,
collecting information on the Earth's weather patterns, monitoring natural resources, environmental
surveys, land use planning, and the study of erosion. It has been suggested that remote sensing could be
utilized for monitoring multilateral environmental agreements. See, e.g., Allison F. Gardner, Student
Article, Environmental Monitoring's Undiscovered Country: Developing a Satellite Remote Monitoring
System to Implement the Kyoto Protocol's Global Emissions-TradingProgram, 9 N.Y.U. ENVTL. L.J.
152, 192-94 (2000).
52. Abbott, supra note 35, at 4-5.
53.
Id at 4.
54.
Id. at 29.
2003]
SustainableDevelopment Is Security
a common element of international treaties and environmental agreements.55
Increasingly, such reporting in the context of an environmental treaty is
subject to independent review or assessment of state compliance by an
international organization created under the agreement for that purpose.
Both verification and assurance strategies are designed to alleviate the
information shortfall that is a constant feature of international tension. By
filling the void in information, verification and assurance ease the fear of
those nations at a perceived disadvantage, while providing some measure of
restraint to those states perceived to be at an advantage. Verification and
assurance can serve as especially powerful CBMs along international rivers
because they bring full disclosure of ecological, economic, and navigational
uses of the river throughout the river basin. Crafting CBMs to ameliorate
conflict along transboundary rivers supports and extends the promotion of
preventive measures,
upon which the United Nations' treaty-making system is
57
largely built.
C.
Proceduraland Substantive Compliance
CBMs are strongest when they are designed to advance both procedural
and substantive compliance by parties to the agreement. Procedural
compliance involves fulfilling one's obligation of process-oriented matters,
such as attending scheduled meetings, filing appropriate reports, and using
established mechanisms for implementing the agreement. 58 Substantive
compliance is focused on fulfilling specific physical obligations. These
obligations-such as capturing or releasing river flow that has an impact on a
lower riparian-go to the heart of the agreement. 59 While the focus on most
analysis regarding international agreements is, quite correctly, placed
disproportionately on substantive compliance, procedural compliance has
considerable independent benefits. Within the context of rival or hostile
neighbors, procedural compliance can begin to construct bilateral
arrangements for peacefully working out differences. Successfully pursued
and implemented, procedural compliance tends to feed on itself, leading to
broader and deeper interaction between nations who are parties to an
agreement. Both substantive compliance and procedural compliance are
distinct from effectiveness, which focuses on whether the agreement itself is
achieving the goals it has established. One could assess an individual state's
substantive and procedural compliance, i.e., asking whether the state is
carrying out the obligations that it had agreed to, independently from
determining if an agreement is meeting its objectives.6 °
55.
Kamen Sachariew, Promoting Compliance with International Environmental Legal
Standards: Reflections on Monitoringand Reporting Systems, 2 Y.B. INT'L ENVTL. L. 31, 39-40 (1991).
56. Michael Bothe, The Evaluation of Enforcement Mechanisms in International
Environmental Law, in ENFORCING STANDARDS: ECONOMIC MECHANISMS AS VIABLE MEANS 13, 22
(Rudiger Wolfrum ed., 1996).
57. Sucharipa-Behrmann & Franck, supranote 15, at 492-93.
58.
Edith Brown Weiss, Understanding Compliance with International Environmental
Agreements: The Baker's Dozen Myths, 32 U. RICH. L. REv. 1555, 1563 (1999).
59.
Id.
60. Id. at 1564; Edith Brown Weiss & Harold K. Jacobson, Getting Countries To Comply with
InternationalAgreements, ENV'T, July-Aug. 1999, at 16, 18.
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[Vol. 28:465
The value of CBMs has not been limited to the bipolarity of the Cold
War. In the last few decades, regional rivals and competitors have explored
and implemented CBMs, sometimes strengthening regional stability. This
process perhaps may be best illustrated with the case drawn from South
America. Through a slow, "brick-by-brick" building project by Brazil and
Argentina, a series of increasingly substantial CBMs arose out of the two
states' narrow bilateral commercial accords in the 1980s. 61 Expanding from
commercial agreements into a web of ambitious sectoral integration
discussions, the two nations began to share information on military matters,
including nuclear research, physics, nuclear information, isotope development
and enrichment, fast breeder reactor development, nuclear safeguard
techniques, and the promise of mutual aid in event of a nuclear accident.6 The
concomitant goodwill fertilized the creation, in 1985, of a joint working
group, established under the direction of the countries' foreign ministries to
63
explore new opportunities for collaboration. Further agreements followed,
fundamentally shifting the boundaries of reasonable debate in both countries.
By 1988, both military and civilian sectors in Argentina and Brazil ceased
viewing the other country as a security threat.64
Thus, beyond the profit obtained from parties' substantive compliance
with the provisions of international river agreements is the prospect of
collateral procedural benefits from learning to work together. India and
Pakistan, in particular, experience disproportionate interaction from their
relationship out of the Indus Waters Commission since the two governments
have little other official interaction. The resulting direct contact between the
parties to river agreements tends to prod the riparians toward "thick
interaction. "65 International law also offers riparians fresh and effective
institutions that tend to make relationships throughout the basin more
interdependent.6 6
Shifting from CBMs, Part III focuses on the political and geographic
landscape of South Asia. The section explains the international security
architecture among India, Pakistan, and Bangladesh, and explores the
hydrological and historical context of transboundary river agreements, which
are analyzed in Part IV. Part V unites CBMs with transboundary river
agreements generally, and the Indus and Ganges agreements specifically, and
draws some observations applicable to South Asia, as well as other
international river basins. Part V also seeks to address whether transboundary
river CBMs are effective before the Conclusion in Part VI.
61.
Michael Barletta, Democratic Security and Diversionary Peace: Nuclear Confidence-
Building in Argentina and Brazil, NAT'L SEC. STUD. Q., Summer 1999, at 19, 22.
62. Id.at 22.
63.' Id.
As a direct result of nuclear transparency, military planners on both sides to the border
64.
revised war plans to accommodate the diminished security threat. This assessment was based on
interviews by Michael Barletta with Antonio Frederico Moreno, Director of Planning, Argentine Joint
Chiefs of Staff, and Manoel Augusto Teixeira, Director of Planning, Brazilian Army Ministry in Sao
Paolo, on November 13, 1994. Id.
65.
Eyal Benvenisti, Collective Action in the Utilization of Share Freshwater: The Challenges
of International Water Resources Law, 90 AM. J. INT'L L. 384, 400 (1996).
66. Id.
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SustainableDevelopment Is Security
III.
THE HYDROPOLITICS IN SOUTH ASIA
South Asia faces a confluence of water scarcity coupled with incendiary
international politics. As a global environmental issue, transboundary river
issues are coalescing, threatening human security and sustainable
development. This has thrust the problem of access to transboundary river
water from the domain of environmental chic into a bona fide issue of
regional, if not global, security. This dynamic affects river basins throughout
the world, leaving no continent untouched,68 and it is at the heart of the
foreign policy and security architecture in South Asia.
The India-Pakistan relationship is one of the few remaining wideranging and globally significant security complexes. 69 American political
scientist Samuel Huntington, who places India and Pakistan at the center of
his "clash of civilizations" thesis, contends that the historic competition
between Hindus and Muslims in South Asia makes the region one of the most
dangerous in the world.70 The region is wracked by overpopulation and has
suffered from severe environmental degradation. 71 From a security
perspective, environmental degradation contributes to instability and increases
the possibility of war on the subcontinent.7 2 Pressure on sustainable
freshwater is particularly acute. The problem is not that the subcontinent lacks
sufficient freshwater, but that what freshwater it has is distributed unevenly.
Bangladesh, for example, enjoys, and at times even suffers from, an
abundance of freshwater, whereas parts of India and Pakistan face serious and
chronic shortages that cannot be remedied by effective irrigation.73 Escalating
environmental stress, brought on in part by immense and growing populations,
67.
U.S.
COMM'N ON NAT'L SEC. IN THE TWENTY-FIRST CENTURY, NEW WORLD COMING:
AMERICAN SECURITY IN THE TWENTY-FIRST CENTURY, SUPPORTING RESEARCH AND ANALYSIS
16 (Sept.
15, 1999), http://www.nssg.gov/NWR-A.pdf; THE WHITE HOUSE, A NATIONAL SECURITY STRATEGY
FOR ANEW CENTURY 13 (Dec. 1999), http://www.dtic.mil/doctrine/jel/otherpubs/nssr99.pdf.
68. This is a global phenomenon, with no continent escaping the trend. Even in the normally
verdant southeast United States, increased population growth and development has surpassed sustainable
withdrawals from the Apalachicola-Chattahoochee-Flint River Basin, generating dispute among Florida,
Georgia and Alabama. See, e.g., Douglas Jehl, Atlanta's Growing Thirst Creates Water War, N.Y.
TIMES, May 27, 2002, at Al. Along the Mexico-Texas border, tensions are rising over the failure of
Mexico to abide by a 1944 treaty to release water from tributaries of the Rio Grande, located in Mexico,
that flow into Texas. See Mary Jordan & Paul Duggan, Water Dispute Divides Texas and Mexico,
WASH. POST, May 25, 2002, at A3.
69. See generally SOUTH ASIAN INSECURITY AND THE GREAT POWERS (Barry Buzan &
Gowher Rizvi eds., 1986) (arguing that the India-Pakistan relationship is best described as a "security
complex" because it is long-lasting and multi-dimensional). Nuclear theorists can disagree on whether
the introduction of nuclear capabilities to the subcontinent may serve to stabilize or destabilize the
security situation. It is clear, however, that the potential for devastating consequences from war have
increased greatly. A reportedly classified Pentagon study estimates that a nuclear war between Pakistan
and India would result in twelve million deaths. See Thom Shanker, Twelve Million Could Die at Once
in an India-PakistanNuclear War, N.Y. TIMES, May 27, 2002, at A5; see also Louis Ren6 Beres, In a
Dark Time: The Expected Consequences of an India-PakistanNuclear Exchange, 14 AM. U. INT'L L.
REV. 497, 510-15 (1998).
70. Samuel Huntington, The Clash of Civilizations?, FOREIGN AFF., Summer 1993, at 22, 3334.
71.
NORMAN MYERS, ULTIMATE SECURITY: THE ENVIRONMENTAL BASIS OF POLITICAL
STABILITY 101-03 (1993).
72.
SHAUKAT HASSAN, ENVIRONMENTAL ISSUES AND SECURITY IN SOUTH ASIA (Adelphi
Papers No. 262, 1991).
73.
ARUN P. ELHANCE, HYDROPOLITICS IN THE THIRD WORLD: CONFLICT AND COOPERATION
ININTERNATIONAL RIVER BASINS 156-66 (1999).
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has given rise to an ecological tragedy on the subcontinent. These trends
hamper local economies and make sustainable development an elusive goal.
To avoid further environmental catastrophe, India, Pakistan, and Bangladesh
will have to construct a more stable security regime that involves more
extensive resource cooperation. In this way, these nations can build upon the
accomplishments of the Indus and Ganges treaties.74
The origins of river water disputes on the subcontinent can be traced
back to the institutions created by the British Raj. The British colonial
government pursued policies encouraging deforestation and sprawling as well
as inefficient irrigation systems; these policies degraded the land for more
than a century. "Today, soil erosion, waterlogging and flooding are among the
whose roots can be traced to the economic practices of
many serious problems
75
the colonial era.",
After World War II, British India was divided, producing a subcontinent
geographically dominated by a hegemonic India surrounded by weaker states.
War erupted between India and Pakistan at the time of partition in 1947-1948.
There were additional conflicts along the West Pakistan-India border in 1965,
and in 1971, when East Pakistan seceded from Pakistan and became
Bangladesh.7 6
A.
Security Politicsin South Asia
The security politics of South Asia are driven by a feeling of being under
siege. India views itself as facing a threat "from one or another combination of
Islamic, Western, Chinese, and small regional powers;" some Indians see their
country surrounded by a sea of extremist Muslims. 77 The countries of the
region also perceive their state and ethnic group as encircled and vulnerable to
attack from hostile outsiders. 78 This psychology compels each side to view
itself as a minority facing more powerful opponents. Indian threat perceptions
rotate among the U.S.-Pakistan alliance, fear of a China-U.S. rapprochement,
or extremist Muslim sympathies among the Indian Muslim minority.
Pakistan's central explanation for tensions on the subcontinent is straight
forward: since its creation, Pakistan has seen itself as resisting a concerted
attempt by India to use its overwhelming size, military capabilities,
and
79
economic power to crush Pakistan and establish regional hegemony.
Each of India's neighbors fears the power of New Delhi, but their
apprehension varies in intensity. 80 Like India and Pakistan, Bangladesh views
itself as a minority state. A culture of resistance to compromise that is driven
by a sense of geopolitical vulnerability also exists in Dhaka. Bangladesh
views the major source of conflict on the subcontinent to be Indian
74. Jerome Delli Priscoli, Water and Civilization: Using History To Reframe Water Policy
Debates and To Build a New EcologicalRealism, 1 WATER POL'Y 623, 626 (1998).
75.
Matthew & Zaidi, supra note 2, at 68.
76.
DAVID W. ZIEGLER, WAR, PEACE AND INTERNATIONAL POLITICS 69-74 (8th ed. 1999).
77.
Stephen P. Cohen, Causes of Conflict and Conditions for Peace in South Asia, in
RESOLVING REGIONAL CONFLICTS 105, 109-10 (Roger E. Kanet ed., 1998).
78.
79.
Id at 108.
/d.at 110.
80.
Id. at 117.
SustainableDevelopment Is Security
20031
domination and arrogance, coupled with ethnic and environmental pressures,
while Bangladeshis view themselves as a benign and neutral power.81 Some in
Bangladesh, like many in Pakistan, seek to offset Indian hegemony by
powers
building up their own
82 power and by building alliances with outside
and regional states.
One scholar has described the core cause of the Indo-Pakistan conflict as
a "paired minority" conflict, in which both India and Pakistan are driven by a
fear of attack by the other. In "paired minority conflicts," each side sees itself
as the vulnerable entity, exposed to constant attack from more powerful
outsiders.83 It is extraordinarily difficult for either side to make concessions,
even on trivial matters, because this may be seen as confirming others'
perceptions of one's own weakness, and invite further demands. Resistance to
compromise sets in because compromise may be seen at home as a sign of
weakness, or worse, as a sign of collaboration with the enemy. 84 The result is
that the foreign ministries and diplomatic corps responsible for negotiations in
each country atrophy and lose their capacity to solve problems with the
opposing state.85
The model of paired minority conflict also explains why India, Pakistan,
and Bangladesh appear willing to push relations to the brink of war over
issues that outsiders might view as irrational. Minority states feel that the rules
of behavior are relaxed for them because their very existence and identity are
at stake. 86 Although both India and Pakistan are susceptible to "deficient
strategic decisionmaking" driven by a sense of overwhelming fear and
helplessness that could precipitate suicidal destructiveness in an emergency,
this strategic decision making pathology is more likely to surface in
Pakistan. 87 "Their struggle is a form of total war, not a limited conflict. Any
means, 88fair or foul, may be used because the enemy has destruction in
mind."
As a consequence of being a paired minority conflict, India and Pakistan
do not have widespread opportunities to build cooperation and develop
structures generating mutual confidence. This magnifies the importance of any
opportunity to engage in confidence building mechanisms with regard to joint
management of environmental resources since fewer opportunities to build
confidence between the parties exist in other areas of the relationship.
Both India and Pakistan experienced post-partition traumas that
cemented their feeling of minority states under siege. For India, it was the
81.
Id.at 107.
82.
Id at 117.
83.
Id. at 108.
84.
Pakistan, in particular, struggles with an internal political movement that tends to attack
compromise with India as a sign of weakness. Pakistani General Pervez Musharraf led a military coup in
Pakistan in October 2000 in the wake of the signing of the Lahore Document, and Islamabad's
subsequent embarrassment over Kargil. See V.G. Ragavan, Limited War and Nuclear Escalation in
South Asia, NONPROLIFERATION REv., Fall/Winter 2001, at 1, 2; see also Cohen, supranote 77, at 118.
Cohen, supra note 77, at 118. The foreign ministries may perform brilliantly elsewhere,
85.
but their ability to negotiate with the other side deteriorates. Id.
86. Id.at 119.
87.
ASHLEY J. TELLIS, INDIA'S EMERGING NUCLEAR
DETERRENT AND READY ARSENAL 743-44 (2001).
88.
Cohen, supra note 77, at 119.
POSTURE:
BETWEEN
RECESSED
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[Vol. 28:465
defeat by China in 1962; for Pakistan, it was the humiliation of the country by
India in 1971.89 By the early 1970s, when the United States and China began
their strategic cooperation to contain the Soviet Union, Pakistan gravitated
toward China as well. This, needless to say, only heightened suspicion in New
Delhi. Consequently, the diplomatic gains of earlier generations of Indian and
Pakistani leaders-figures such as Mahatma Gandhi, Sardar Patel,
Mohammed Ali Jinnah, and Jawahlarlal Nehru-became impossible to
extend. As early as the 1950s, India and Pakistan had reached agreements on
trade, transit, hotlines, and other confidence building measures. 90 Since the
war in 1971, however, their animosity has become deeply entrenched,
highlighting the lack of progress in diplomacy and conventional military
confidence building for the past three decades. One source of promise in this
discouraging relationship is India's foreign policy shift away from direct
competition with Islamabad toward a policy of "benign neglect." 91 New
Delhi's new perspective is not driven by a desire to "beat" Pakistan through
an indirect approach, "but by fears of increasing dangers in the regional
environment and by a recognition that continuing underdevelopment will
make India only more insecure than before., 92 For its part, Pakistan, too, has
shifted away from obsession with India, and has even proposed that the two
powers focus
on creating nuclear risk-reduction and confidence building
93
measures.
A new generation of more sophisticated and worldly military officers
and diplomats in Pakistan and India is quickly emerging. These professionals
are driven less by personal hatred of the other side and are largely free of
blaming their countries' misfortunes on the Soviet-American Cold War
rivalry. Driven by realism, fresh approaches to economics, and an
understanding of the consequences of nuclear war, this new generation
represents more fertile ground-leaders who could more easily embrace and
capitalize on new CBMs than those in recent past.
B.
The Indus and the Ganges Rivers
Against the backdrop of geopolitical instability in South Asia is an
increasing demand for river water, driven by expanding populations and the
quest for economic and social development. The environmental and economic
pressures on scarce freshwater on the subcontinent serve as an important
component of the geopolitical conflict. 95 Some amount of resource conflict is
an unavoidable element of social interaction, and competition among social
89.
Id. at 115.
90. Id. at 114.
91.
Ashley J. Tellis et al., Sources of Conflict in Asia, in SOURCES OF CONFLICT IN THE
TWENTY-FIRST CENTURY 43, 150 (Zalmay Khalilzad & Ian 0. Lesser eds., 1998).
92. Id. at 150-51.
93.
Gaurav Kampani & Haider K. Nizamani, A Shift Away from Indo-centrism?,DAWN, Apr.
16, 2001, http://www.dawn.com/2001/04/16/op.htm#2.
94. Cohen, supra note 77, at 121-22.
95.
See, e.g., Peter H. Gleick, Water and Conflict: Fresh Water Resources and International
Security, INT'L SEC., Summer 1993, at 79; Christopher L. Kukk & David A. Deese, At the Water's Edge:
Regional Conflict and Cooperation Over Fresh Water, 1 UCLA J. INT'L L. & FOREIGN AFF. 21 (1996).
SustainableDevelopment Is Security
2003]
choices contributes to efficient outcomes. 96 The challenge, of course, is to
develop peaceful mechanisms for resolving acute as well as chronic conflict
before it erupts into violence. Nowhere is the challenge more compelling than
in South Asia, where management97 and apportionment of international river
flow is a fulcrum for peace or war.
There are over 260 international river basins watersheds worldwide.
These international basins account for about sixty percent of the global river
flow. 98 Catchement basins cover 45.3 percent of the land surface of the Earth,
99
and affect forty percent of the world's population. Immense rivers like the
Indus and Ganges define the landscape, stretching for thousands of kilometers.
Giant rivers may form the spatial and functional core of a country, or even a
civilization. 0 0 Successful agricultural economies, effective public health, and
industrial development are all severely threatened by a lack of access to
international river water. International drainage basins link riparian states into
a common and interdependent freshwater system that connects the agriculture,
industry, energy, and transportation sectors into an integrated regional unit.
Action by one riparian may affect the quantity and quality of river water
available to neighboring states, imposing direct costs on other states in the
basin. Basin nations share not just a river, but an entire ecosphere.
Consequently, the potential for conflict, and the possibility of compromise and
cooperation, exist side by side.
The name of the river Indus is derived from the Sanskrit word "sindhu,"
which means "river" or "great stream," and is the source of India's name. The
Indus River begins at 17,000 feet above sea level in southwestern Tibet, winds
for 2,900 kilometers through the Himalayas in Jammu and Kashmir before
emptying into the Arabian Sea. For 320 kilometers it flows northwest,
crossing the southeastern boundary of Jammu and Kashmir. It has a total
drainage basin area of about 450,000 square miles, encompassing much
territory in both Pakistan and India. The river's annual flow is about 272
billion cubic yards (207 billion cubic meters), twice that of the Nile and three
times that of the Tigris and Euphrates combined. Under British rule, a vast
irrigation canal system was constructed throughout the Indus Basin,
comprising the largest irrigation system in the world. After Pakistan and India
became separate states, the unified approach to the basin brought conflict
between the two nations, with headwaters belonging to India, and canals
running to Pakistan.
Pakistan certainly feels vulnerable to Indian mischief regarding the
Indus, fueled by a general obsession over fears of being dominated by
96.
Evita Schmieg, Crises Prevention: Lessons for Development Cooperation, in BONN INT'L
CENTER FOR CONVERSION, BRIEF 16: PRACTICAL DISARMAMENT 10 (2000).
97. The terms "international river" and "transboundary river" are used interchangeably to
mean rivers that border on or flow through two or more nations.
98. Aaron T. Wolf, Transboundary Waters: Sharing Benefits, Lessons Learned, Thematic
Background Paper, International Conference on Freshwater, Bonn, Germany, Dec. 2-7, 2001, at 1
(unpublished manuscript, copy on file with author). The number of international river basins has
expanded from 214 listed in 1978, with the growth attributable to the reorganization of the state system
in Europe following the breakup of the Soviet Union and Yugoslavia, as well as to improved mapping
technology. Id. at 2.
99.
100.
Id. at 1.
Priscoli, supra note 74, at 627.
THE YALE JOURNAL OF INTERNATIONAL LAW
[Vol. 28:465
India. 10 1 Most analysts contend that Pakistan's exposure does not approach the
desperately alarmist position described by David E. Lilienthal, a former
chairman of the Tennessee Valley Authority, who proclaimed fifty years ago:
"No army, with bombs and shellfire, could devastate a land as thoroughly as
Pakistan could be devastated by the simple expedient of India's permanently
shutting off the sources of water that keep the fields and people of Pakistan
alive."'10 2 Still, Pakistan is geographically vulnerable as the lower riparian.
For Bangladesh, there is too much water during the monsoon, and too
little water during the dire dry season. This annual pattern dominates life in
Bangladesh, and is the foundation for understanding security and the
environment in the country. 0 3 Bangladesh, with a population density among
the highest in the world at 850 people per square kilometer, sits among three
immense rivers that form an interconnected system-the Ganges, the
Brahmaputra, and the Meghna. The nation is very rich in water resources and
fertile land, but there is wide seasonal variation in the quantity of water from
the rivers. Ninety percent of the river flow originates outside the country, so
cooperation with the upper riparians-India, Bhutan, and Nepal-is essential
for controlling flooding and relieving drought. These huge flows of water,
entering the country from the outside, drain into the Bay of Bengal-enough
water to submerge the country in more than nine meters of water annually. 10
The Ganges, or Ganga in Hindi, stretches 1560 miles (25 10 kilometers)
in a southeasterly flow across the Gangetic Plain from Uttar Pradesh through
the Indian states of Bihar and West Bengal. The Gangetic Plain is one of the
most densely populated and fertile areas in the world. Throughout the plain,
the only topographical relief is the wide and sluggish river. The Ganges has
five headstreams' 0 5 that all rise in the northernmost Uttar Pradesh state in
India, and its major tributaries include the Yamuna, Ramganga, and Ghaghara
rivers in Uttar Pradesh and the Gandak, Burhi Gandak, and Kosi rivers in
Bihar. In central Bangladesh, the river is joined by the Brahmaputra River and
the Meghna River in the northeast above Chandpur. The combined waters of
these tributaries comprise an immense basin with channels spreading out to
form a delta 200 miles wide, which is shared by Bangladesh and India. The
total drainage area encompasses nearly 400,000 square miles, or roughly onefourth the territory of India, and the area supports a half-billion people. Since
ancient times, people across the plain have used the Ganges for irrigating cash
crops such as wheat, sugarcane, cotton, and oilseed to sell in Uttar Pradesh
and Bihar.
The Hindus are perhaps more closely associated with the Gangesculturally, religiously, and socially-than any people to any major river in the
world. Although Egypt is arguably more reliant on the waters of the Nile for
101. Tellis et al., supranote 91, at 148-151.
102. David E. Lilienthal, Another "Korea" in the Making?, COLLIER'S, Apr. 4, 1951, at 58.
103. Ainun Nishat, Development and Management of Water Resources in Bangladesh: Post1996 Treaty Opportunities, in SUSTAINABLE DEVELOP 'ENT OF THE GANGES-BRAHMAPUTRA-MEGHNA
BASINS 80, 81 (Asit K. Biswas & Juha 1. Uitto eds., 2001) [hereinafter SUSTAINABLE DEVELOPMENT].
104. Id.at 80.
105. The headstreams are Bhagirathi, Alaknanda, Mandakini, Dhauliganga, and Pindar.
SustainableDevelopment Is Security
2003]
its economy, health, and development, the Hindus' need for the Ganges
transcends development to become spiritual.
Understanding the role of international rivers in regional security
informs a more complete model of geopolitics by infusing traditional notions
of national security with issues of human security, environmental protection,
and sustainable economic development. Environmental stress, pressure from
industrialization and agriculture, increasing population rates, and ineffective
resource management contribute to the degradation of international river
water. Major environmental and economic interest groups have been most
effective at promoting their agendas domestically and internationally. A study
by the Pacific Institute for Studies in Development, Environment, and
Security concluded that a preoccupation with agricultural and economic
development has ignored other equities, such as access to water for the poor,
the health of the aquatic0 6 environment, and the integrity of waterside
communities and cultures.'
IV.
TRANSBOUNDARY RIVER AGREEMENTS IN SOUTH ASIA
Some of the earliest agreements in modem international law reflected
the inseparable linkage between river agreements, interstate politics, and
international security. Treaties that marked the end of the Thirty Years' War
in 1648, including the Treaty of Westphalia and the Treaty of Munster,
affected much of the Rhine and Upper Danube, in addition to their wellknown role as a catalyst for the formation of modern European nationstates.107 In the Treaty of Munster, for example, Article 12 "opened the lower
Rhine to free navigation and trade," but closed the Scheldt River in the
Spanish Netherlands as "a concession to the merchants of Amsterdam, who
sought a competitive advantage over their rivals in Antwerp."' 10 8 These
conflicting examples of the Rhine and the Scheldt Rivers represent competing
legal and ideological principles of transboundary rivers between natural lawin which rivers were held to be the property of everyone or no one-and
Roman law-in which rivers were regarded as the property of the citizens and
as a subject of the empire. 10 9 These conflicts resurface in modem
transboundary river disputes. Surveying 300 years of transboundary river
agreements, one scholar concluded that issues of war and peace, rather than
conflicting legal principles, were the paramount features of the geopolitical
context of international river agreements between 1648 and 1948.' Indeed,
106. P.H. GLEICK ET AL., PAC. INST. FOR STUD. IN DEV., ENV'T, & SEC., THREATS TO THE
WORLD'S FRESHWATER RESOURCES 2-3, 51 (2001), http://www.pacinst.org/reports/threats to the
worlds freshwater.pdf. In some areas of South Asia, more than three-fourths of the population lacks
access to clean drinking water or adequate water-related sanitation. Worldwide, such shortages lead to
over three million deaths per year. Id.at 5-8. Waterbome disease invades international watersheds in
Asia and Africa. Malaria alone afflicts 300 to 500 million people each year and kills more than two
million. Tom Carter, DDT Malaria'sAnswer in Africa?, WASH. TIMES, June 16, 2002, at Al.
107. James L. Wescoat, Jr., Main Currents in Early Multilateral Water Treaties: A HistoricalGeographicPerspective, 1648-1948, 7 COLO. J. INT'L ENVTL. L. & POL'Y 39, 49-50 (1996).
108. Id.at 50.
109. Id.;
see also EUGENE F. WARE, ROMAN WATER LAW (1905).
110. Wescoat, Jr., supranote 107, at 71.
THE YALE JOURNAL OF INTERNATIONAL LAW
[Vol. 28:465
the history of transboundary river agreements is one of incremental but steady
construction of institutional capacity building among river water
competitors.' l
In the modem age, access to the international river basins throughout the
Third World1 12 has generated intense competition among riparian states,' 3 as
well as yielded unsung success from international cooperation. The paradox is
that, while promoting strife and gamesmanship on the one hand, freshwater
durable laboratories for
scarcity has proved 1to
14 be one of humanity's most
building community.
The two primary river agreements in South Asia-the Indus Waters
Treaty between India and Pakistan and the Ganges agreement between India
and Bangladesh-have contributed stabilizing machinery to the political
relationship between the parties. India is the geopolitical center of South Asia.
The government in New Delhi asserts disproportionate power in relation to
the other states on the subcontinent, effectively exercising regional hegemony,
so initial steps toward transboundary river cooperation were relatively
measured and conservative. The Indus and Ganges treaty regimes were
intentionally designed to limit cooperation to narrowly defined areas because
of the difficulty of close cooperation between India, Pakistan, and
Bangladesh. 115
A.
The Indus and the Ganges Treaties
Following the partition of the Indian subcontinent in 1947, a dispute
arose over the Indus waters when India cut off water flow to some Pakistani
canals at the start of the summer irrigation season in 1948.116 The
disagreement simmered until it was successfully resolved in 1960 after eight
years of negotiation. The conclusion of the Indus Waters Treaty,1 17 which was
made possible by funding and engaged diplomacy by the United States and
111. Id. at 72.
112. This article focuses on three nations in South Asia, which may be described as part of the
"Third World." The term "Third World" (Tiers Monde in French) was initially coined by the French
demographer Alfred Sauvy in 1952 as an analogy from the "third estate." The third estate described the
commoners in France before and during the French Revolution. The term was adopted by twenty-nine
African and Asian nations at the Conference in Bandung, Java, Indonesia in 1955, and came to denote
those nations neutral of the ideological divide during the Cold War. See The Asian Language,
ASIAWEEK, Mar. 5, 1999, at 70. Because South Asia encompasses immense diversity of culture,
economic development, and natural resources, as well as political systems, the term "Third World" is an
incomplete, if not inaccurate description. On the Third World as a collective, see John Ravenhill, The
North-South Balance of Power, 66 INT'L AFF. 731 (1990).
113. In 1980, Egyptian President Anwar el-Sadat said, "If Ethiopia takes any action to block
our right to the Nile waters, there will be no altemative for us but to use force." Norman Myers,
Environment and Security, FOREIGN POL'Y, Spring 1989, at 32.
114. Priscoli, supranote 74, at 626.
115. Nurit Kliot et al., Development of Institutional Frameworks for the Management of
TransboundaryWater Resources, I INT'L J. GLOBAL ENVTL. ISSUES 306, 321 (2001).
116. G. T. Keith Pitman, The Role of the World Bank in Enhancing Co-operation and
Resolving Conflict on International Watercourses: The Case of the Indus Basin, in INTERNATIONAL
WATERCOURSES: ENHANCING CO-OPERATION AND MANAGING CONFLICT 155, 158 (Salman M.A. Salman
& Laurence Boisson de Chazoumes eds., World Bank Technical Paper No. 414, 1998).
117. Indus Waters Treaty, Sept. 19, 1960, India-Pak., 419 U.N.T.S. 125.
SustainableDevelopment Is Security
20031
the World Bank, reordered and stabilized hydropolitics throughout the
basin. 118
The Indus Waters Treaty was the first major transboundary river
agreement in South Asia.' 19 The terms of the agreement gave India control of
the eastern rivers Ravi, Sutlej, and Beas; Pakistan received control over the
western rivers Indus, Jhelum, and Chenab. Pakistan was allocated 81 percent
of the Indus' water, while India received 19 percent' The treaty also
established a system of conflict resolution by creating a Permanent Water
Commission composed of Indian and Pakistani water commissioners. Only
when these organs failed would a dispute be referred to an arbitral court or
neutral expert, a last resort that the parties have never sought. 120 A period of
transition followed the signing of the agreement during which each state
developed its irrigation infrastructure to conform to the treaty.' 2' Thus, the
waters of the Indus were divided in the same way that India was partitioned.
In addition to a simple division of river flow, the treaty calls on both parties to
exchange flow data for rivers, canals, and streams, and to submit disputes to
22
the Permanent Indus Commission and an international court of arbitration.
This system of checks and inspections ensures that each state complies with
its water quotas, and that neither country develops projects that diminish the
quantity or quality of the water allocated to the other state.
The agreement permits India, the upper riparian state, to use the flowing
water, but it prohibits any construction that facilitates storage or diversion of
the river water. Pakistan fears that India could disturb the flow of the Jhelum
by building a dam in India. A dam could disrupt the irrigation pattern in
central and southern Punjab, where farmers depend on the Jhelum's water, by
flooding the region when water was not required and withholding the flow
when it was most needed. It could make a large part of the Punjab barren, but
India would need at least 15 years to build such a dam. 23 Pakistan has also
raised concerns that India could divert the flow of the Chenab to the Ravi in
order to use the river as a weapon. The Chenab is only fifty kilometers from
the Ravi River on the Indian plain; if India dug a canal to connect the two
waterways, it could consume the entire flow of the Chenab to expand its
irrigation network to the Rajhisthan desert. 124 Either action would unilaterally
abrogate the treaty. But despite Pakistani concerns, India has not shown a
serious inclination to violate the treaty, as the economic and engineering costs
118. UNITED NATIONS, LEGISLATIVE TEXTS AND TREATY PROVISION CONCERNING THE
UTILIZATION OF INTERNATIONAL RIVERS FOR OTHER PURPOSES THAN NAVIGATION 300, U.N. Doc.
ST/LEG/Ser. B/12, U.N. Sales No. 63.V.4 (1963).
119. See, e.g., Asit K. Biswas, Indus Waters Treaty: The Negotiating Process, 17 WATER INT'L
201 (1992); Jagat S. Mehta, The Indus Water Treaty: A Case Study in the Resolution of an International
River Basin Conflict, 12 NATURAL RESOURCES F. 69 (1988).
120. Kliot et al., supra note 115, at 323.
121. ldat321.
122. Indus Waters Treaty, Sept. 19, 1960, India-Pak., art. IX, 419 U.N.T.S. 125 at 150-152;
FARZANA NOSHAB & NADIA MUSHTAQ, INSTITUTE OF STRATEGIC STUDIES, WATER DISPUTES IN SOUTH
ASIA (2001), http://www.issi.org/pk/strategic-studies-htm/2001/no.3/article/4a.htm.
See also Mehta,
supra note 119.
123. Ahmad Fraz Khan, Chenab, Jhelum Vulnerable to Treaty Mischief Indian Minister's
Threat, DAWN, May 26, 2002, http://www.dawn.com/2002/05/26/nat8.htm.
124. Id.
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[Vol. 28: 465
would be exorbitant and the political costs unacceptably high. Many in
Pakistan would view river diversion as an act126of war, 2'and India could
expect Pakistan to retaliate against Indian dams.
After forty years, the Indus Waters Treaty has survived intact despite
two wars-in 1965 and 1971-and numerous crises induced by the threat of
clashes. This turbulence has made the subcontinent the most likely place in
the world for a nuclear war.' 27 But the Indus Commission has successfully
resolved controversies and disputes that have surfaced during this period.
Both rivals have respected the provisions of the agreement by fulfilling their
responsibilities and by taking care not to politicize the arrangement or
militarize the system of dams and hydroelectric facilities, canals, and watertreatment and distribution facilities throughout the basin.1 28 Although the
original treaty foresaw an era of joint planning and cooperation for the
development of the river, the two governments have not yet referred any
29
mutual or cooperative development project to the Commission.
Consequently, the provisions for basin-wide inspection and monitoring have
become the most important sections of the treaty. Even though the agreement
never blossomed as was originally hoped, it has still been able to serve as a
stabilizing mechanism between the two competitors. The agreement has also
piqued interest1 30in and laid the groundwork for other development agreements
in South Asia.
In 1951, while Bangladesh was still part of Pakistan, India began a plan
to construct the Farraka Barrage close to the Bangladeshi border with India.
The Barrage was intended to divert water from the Ganges to the Hooghly
River and redirect it toward enhancing the draft and flushing the ancient port
of Calcutta. 131 Bangladesh immediately protested the plan, and the dispute
132
was under negotiation between Bangladesh and India for nearly fifty years.
The dispute centered on the amount of water that India would release to
Bangladesh for domestic use and agriculture. Bangladesh argued that its
normal requirements of the Ganges during the dry season (January 1-May 31)
amounted to the entire flow of the river, and that any diminution would
severely hinder irrigation and domestic and municipal uses downstream. The
Barrage was commissioned in 1975, over the objection of Bangladesh, but the
two countries reached temporary accommodation in 1977 on sharing of the
125. See id.
126. Dams are not lawful targets under the customary law of war, but such observance might
not be reciprocated in a major war between the two nuclear states. See Protocol I Additional to the
Geneva Conventions of 1949, arts. 56-58, 1125 U.N.T.S. 3, June 8, 1977.
127. See M.V. Ramana & A.H. Nayyar, India, Pakistan and the Bomb, Sa. AM., Dec. 2001, at
72, 72, 74; Strobe Talbott, Dealing with the Bomb in South Asia, FOREIGN AFF., Mar. 1999, at 110.
128. For example, the success of the Salal Hydroelectric Project exhibited enlightened political
direction by both sides. Mehta, supranote 119, at 76-77.
129. Kliotet al., supranote 115, at 321.
130. The agreement has set the stage for American and World Bank support for even closer
cooperation between India, Pakistan, and other nations in the region. Ideas being considered are an IranPakistan-India or a Turkmenistan-Afghanistan-Pakistan-India natural gas pipeline. Jairam Ramesh,
13/12 andthe USA, INDIA TODAY, Dec. 24, 2001, at 53.
131. After the 1996 agreement, there was limited improvement at Calcutta port. See GREEN
CROSS INT'L, NATIONAL SOVEREIGNTY AND INTERNATIONAL WATERCOURSES 78-79 (2000); B.G.
Verghese, From Dispute to Dialogue to Doing, in SUSTAINABLE DEVELOPMENT, supranote 103, at 177.
132. Nishat, supranote 103, at 81.
2003]
SustainableDevelopment Is Security
Ganges during the dry season. The 1977 agreement lasted only five years; it
agreements covering the periods 1982-1984 and
was extended by two side
33
1985-1988, respectively.'
From 1988 until 1996, the two nations apportioned the flow of the
Ganges under the formula laid out in the 1977 agreement.' 3 4 When that
agreement finally expired in 1988, India unilaterally siphoned off water
flowing into Bangladesh, affecting the thirty-five million people living in the
Padma basin.' 35 From 1988 to 1996, there was no agreement-a severe irritant
in Indian-Bangladeshi foreign relations. In 1996, India and Bangladesh
concluded a new agreement on managing the waters of the Ganges. The 1996
treaty set forth a new formula for sharing river flow during the dry season, and
developed a seasonal schedule of flow rates. The principal objective of the
1996 Bangladesh-India Treaty is to regulate the amount of water that India
36
releases at the Farakka Barrage along the Ganges over the next thirty years.'
It also provides that below the Barrage, India may not further reduce the flow
except in a limited amount constituting "reasonable use."' 137 The formula
equally divides all river flow of 70,000 cubic feet per second (cusecs) between
the two nations. If there is a river flow of between 70,000 and 75,000 cusecs,
Bangladesh is entitled to receive 35,000 cusecs and India the rest; with a flow
of more than 75,000 cusecs, India is entitled to 40,000 cusecs and Bangladesh
receives the balance.' 38 The Treaty also establishes
three ten-day periods for
139
both countries when each will get 35,000 cusecs.
Annexure 1 140
Availability at Farakka
70,000 cusecs or less
70,000-75,000 cusecs
75,000 cusecs or more
Share of India
50%
Balance of flow
40,000 cusecs
Share of Bangladesh
50%
35,000 cusecs
Balance of flow
The parties established a Joint Committee that is responsible for
implementing the arrangements of the treaty, and for identifying issues to be
addressed by the Indo-Bangladesh Joint Rivers Commission.141
Like the Indus agreement, the agreement between India and Bangladesh
on the sharing of waters at Farakka arose within a political environment of
hostility and mutual suspicion. It is thus an ideal candidate for examining
133. Bangladesh-India Agreement on the Sharing of the Ganges' Waters, Nov. 5, 1977, 17
I.L.M. 103 (1978). Two Memoranda of Understanding followed the 1977 agreement, one in 1982 and
one in 1985, both of which were short lived.
134. Id.
135. Unneighborly Conduct: How India and Bangladesh Can Patch Up Their Ties, ASIAWEEK,
May 10, 1996, at 24.
136. Bangladesh-India Treaty on Sharing of the Ganges Waters at Farakka, Dec. 12, 1996, arts.
I, XII, 36 I.L.M. 519, 523, 526.
137. Id.art. 111,
36 I.L.M. at 524.
138. Id. art. II, Annex 1. Further provision is made if the Ganges' flow falls below 50,000
cusecs. Id. art. II(iii).
139. Id. art. II, Annex 1.
140. Id.
141. Id.arts. VI, VII at 525.
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[Vol. 28:465
142 One
whether a treaty alone might work to reduce international tension.
study that compared the level of cooperation across nine international river
basins in Africa, Europe, Asia, South America, and the Middle East, ranked
143
Nonetheless, the
the Indus and Ganges basins at the bottom of the list.
Indus agreement is regarded as a unique and successful bridge between India
and Pakistan because they have been unable to cooperate in any other way.
V.
TRANSBOUNDARY RIVER AGREEMENTS AS
CBMs
In many areas of the world, water scarcity and conflict may be closely
linked to the lack of international cooperation over shared freshwater
resources.1 44 The strategic geography of the Indus and Ganges basins, much
like that of the Jordan, Nile, and Euphrates, tends to promote disputes over
water scarcity. In the former two cases, bilateral cooperation on shared
45
transboundary rivers effectively ameliorated the conflict., Agreements
resolving transboundary rivers conflicts, however, have utility beyond merely
dampening disputes over water scarcity; such agreements have served as
confidence and security-building mechanisms more generally. More likely
than generating conflict, international rivers have engendered cooperation,
flexibility, and interdependence among tribes, ethnic communities, and
nations alike. Indeed, learning how to share freshwater resources has more
often served as humanity's forum for building community than as a cause of
war.146 While scarce resources always pose a risk of conflict, the history of
disparate ethnic groups and nations that live along shared river basins is
largely one of cooperation and coexistence. 147 This ancient past fosters
optimism for the present, and it is used here as a point of departure for
recasting today's complex international river disputes as opportunities for
building stability and reducing the likelihood of interstate warfare.
Recognizing and capitalizing on this external benefit of transboundary river
agreements has great implications for improving regional stability in
international river basins.
Because the Indus Treaty and the agreement on the Farakka Barrage do
not specify agreement on any lofty principles of international law, some
scholars have considered them to have established relatively weak
transboundary water institutions.1 48 During negotiations, the parties did assert
contending theories of right to water based on "prior use," "historical rights,"
and "equitable use" or "equitable apportionment."' 149 These terms of
international law prevail on the parties to negotiate by setting out vague
142. Kliot et al., supranote 115, at 322.
143. Id.at 321-22. Four river basins-the Senegal, Niger, Colorado, and Rio Grande-had a
high degree of commitment to cooperation. The Indus and Ganges Basins featured the least commitment
at 309.
thereto. The Mekon, Danube, and Elbe represented an intermediate category. Id.
144. Kukk & Deese, supra note 95, at 57.
145. Id.at 39-52.
146. Priscoli, supranote 74, at 626.
147. Id. at 624.
148. Kliot et al., supra note 115, at 322.
149. Id.
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standards for water apportionment that prompt the parties to negotiate. 150 And
because the terms never connote a precise rule, the vague standards continue
to generate benefits extending into the future. 151 Although both the Indus and
Ganges treaties perhaps made no advances in the law per se, their impact in
achieving water resource stability and in reducing pretext for war is not
modest.
A.
Environmental Causes of War... and Peace
As with the causes of war, there are tremendous methodological
problems in identifying the critical element that might bring peace. Periods of
war or peace are likely created by both a complex set of variables and an
assortment of historical contingencies. It is instructive that the "Correlates of
War," an international project at the University of Michigan to explore the
conditions associated with the outbreak of war, sought unsuccessfully during
four decades to isolate the precise variables or mix of variables that could be
identified as the critical causes of warfare.152 Just as international relations
scholars have debated the causes of war without coming to any consensus on
the critical factors of causation, those studying international law may be
unable to reach agreement on the necessary conditions for peace. The search
for variables yielding peace has not been fruitful, causing some scholars to
abandon the effort.
Environmental and security literature suggests that many constellations of variables can
generate, trigger or amplify violence and insecurity; it is therefore unproductive to seek a
single causal model with universal explanatory and predictive power . ... At the same
time, however, there exists today a constellation of interactive
variables that, when
53
associated with severe environmental stress, are foreboding.1
In attempting to determine the key causes of war, scholars have offered
leadership, character, and personality models, 54 nationalism,' 55 the role of
power politics, 156 deterministic world system models,1 57 economic theories of
imperialism,158 and natural aggressive tendencies of human nature. 159 Adding
to these traditional theories, many believe that immense environmental
150. Benvenisti, supra note 65, at 402.
151. Id. at 402-03.
152. Richard Matthew, In Defense of Environment and Security Research, ENVTL. CHANGE &
SEC. PROJ. REP., Summer 2002, at 109, 116. Since its inception in 1963, the Correlates of War (COW)
Project has produced more than 150 book chapters and scholarly articles and a dozen books. The project
is located on the intemet at http://www.umich.edu/-cowproj/index.html (last visited Apr. 26, 2003).
153. Matthew, supranote 152, at 116.
154.
155.
156.
See, e.g., JOHN G. STOESSINGER, WHY NATIONS GO TO WAR (8th ed. 2000).
See, e.g., KENNETH N. WALTZ, MAN, THE STATE AND WAR 174-79 (1959).
See, e.g., HANS J. MORGENTHAU, POLITICS AMONG NATIONS: THE STRUGGLE FOR POWER
AND PEACE (Kenneth W. Thompson ed., 6th rev'd ed. 1985).
157. See generally, e.g., GEORGE MODELSKI, LONG CYCLES IN WORLD POLITICS (1987);
WORLD SYSTEM HISTORY: THE SOCIAL SCIENCE OF LONG-TERM CHANGE (Robert Allen Denmark et al.
eds., 2000).
158.
See, e.g., J.A. HOBSON, IMPERIALISM: A STUDY (1965); V.I. LENIN, IMPERIALISM: THE
HIGHEST STAGE OF CAPITALISM (1939).
159.
See, e.g., KONRAD LORENZ, ON AGGRESSION (Marjorie Kerr Wilson trans., 1966); Peter A.
Coming, The Biological Basis of Behavior and Some Implicationsfor Political Science, 23 WORLD POL.
321, 342-44 (1971).
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[Vol. 28:465
degradation and resource mismanagement are contributing factors to regional
In a 1999 pilot study, NATO concluded that
violence and war.
environmental stress interacts with political, economic, and social factors to
create a higher potential for conflict.161 Peter H. Gleick of the Pacific Institute
for Studies in Development, Environment and Security has built an effective
model of freshwater-related conflicts derived from his exhaustive set of data
on the contribution of water to international conflict.1 62 This seminal effort,
which arose at the height of the Cold War in the 1980s, has promoted a new
appreciation of the role of water as a critical component of political, military,
and strategic thought.1 63 Competition over freshwater resources often
exacerbates international tension, but nations have been remarkably unlikely
to go to war solely over freshwater river competition.' 64 It is probably no
accident, however, that in the areas of most extreme freshwater scarcity, the
drive for water is more
1 65 often an adjunct to greater geo-strategic and political
rivalry, and even war.
There is little question that long-term national security is not possible
without stabilizing environmental security. 166 Although international disputes
over freshwater resources and river water are unlikely to be the sole cause of
war, such conflicts act as a catalyst to undermine regional stability.' 67 It is no
surprise that some of the more troublesome arcs of conflict throughout the
world fall along international watercourses, since that is where large
populations coalesce to take advantage of freshwater resources. Water issues
between Israel and its neighbors, for example, introduce the dynamic of a
scarce resource into an incendiary geopolitical situation that could erupt into
160. See, e.g., Thomas F. Homer-Dixon, Environmental Scarcities and Violent Conflict:
Evidence from the Cases, INT'L SEC., Summer 1994, at 5, 35-36; Thomas F. Homer-Dixon, On the
Threshold: Environmental Changes as Causes of Acute Conflict, INT'L SEC., Fall 1991, at 76, 106-13.
For electronic versions of both International Security articles, along with other research by HomerDixon, see http://www.homerdixon.com/r&sp/frames-aca.htm (last visited Apr. 26, 2003).
161.
NATO COMM. ON THE CHALLENGES OF MODERN Soc., ENVIRONMENT & SECURITY IN AN
INTERNATIONAL CONTEXT: FINAL REPORT 93-108 (Kurt M. Lietzman & Gary D. Vest eds., 1999),
http://www.nato.int/ccms/publi/envsec/tech-rep.pdf. For the Report's graphical depiction thereto, see id.
at 104.
162.
PETER
GLEICK,
PAC.
INST.
STUDS.
DEV.,
WATER
CONFLICT
CHRONOLOGY-
INTRODUCTION, at http://www.worldwater.org/conflictlntro.htm (last modified Sept. 23, 2000).
163. Peter H. Gleick, Forewordto PAC. INST. STUDS. DEV., FIFTEENTH ANNIVERSARY REPORT:
1987-2002, at i (2003) (on file with author).
164. ELHANCE,supra note 73, at231-32.
165. One of the most useful and perhaps the most exhaustive catalog for such agreements is the
Transboundary Freshwater Dispute Database, a project of the Department of Geosciences at Oregon
State University in collaboration with the U.S. Institute of Peace, the World Bank, the University of
Alabama, and other individuals and institutions. The database, which references 3,600 water-related
treaties dating back to the Ninth Century, contains over 150 full-text transboundary freshwater treaties
and detailed negotiating notes on fourteen case studies, and may be accessed through the internet at
http://terra.geo.orst.edu/users/tfdd/index.html.
166. See, e.g., Lothar Brock, Security Through Defending the Environment: An Illusion, in
NEW AGENDAS FOR PEACE RESEARCH: CONFLICT AND SECURITY REEXAMINED 79 (Elise Boulding ed.,
1992); Bruce Byers, Ecoregions, State Sovereignty and Conflict, 22 BULL. PEACE PROPOSALS, Mar.
1991, at 65; Robert D. Kaplan, The Coming Anarchy, ATL. MONTHLY, Feb. 1994, at 44, 58-59.
167. This is particularly true in the case of Southwest Asia. See PETER GIZEWSKI & THOMAS
HOMER-DIXON, PROJ. ON ENV'T, POPULATION, AND SEC., OCCASIONAL PAPER: ENVIRONMENTAL
SCARCITY AND VIOLENT CONFLICT: THE CASE OF PAKISTAN (1996), http://www.library.utoronto.ca/
pcs/eps/pakistan/pakl .htm.
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69
war. 168 Most scholars accept that South Asian politics are analogous.
Conflict over sharing scarce freshwater resources on the subcontinent,
water works, widens the potential for violence
especially river irrigation and
170
Pakistan.
and
India
between
B.
Confidence Building on the Indus and the Ganges
International river basins present a ripe opportunity to negotiate and
institute mechanisms that reduce tension and help to prevent war. Viewing
international river agreements through this lens, and applying it to the
geopolitics of South Asia, yields some interesting and perhaps unexpected
findings. This approach to preventing conflict and obtaining consensus on
transboundary rivers turns conventional wisdom on its head. The accepted
model for approaching transboundary river disputes suggests that success in
resolving such disputes is impossible until underlying geostrategic questions
are resolved. As one proponent of the convention position argues:
The sine qua non of resolving transboundary water dispute in a protracted conflict setting
is the prior resolution of the potential conflict. The history of water disputes in the Jordan
River basin and in the Indus basin (between India and Pakistan)-both of which have
been deeply intertwined with a protracted political conflict-instructs us that states
involved in "high politics" conflicts that provoke wars and engage visceral issues of
territorial sovereignty and the recognition of identities, are not inclined to collaborate71in
seemingly technical matters that concern economic development and human welfare.
Although this view may seem persuasive, there is value in introducing and
exploring a fresh approach to reducing the risk of violent conflict-which is
so devastating to the citizens, the economy, and the environment of the
affected nations. Dramatic breakthroughs in negotiating international river
basins, while welcome, are not necessary to bring two parties closer. Even in
cases in which riparians merely agree to share information and exchange data,
(i.e., concluding assurance and verification agreements), while agreeing to
disagree on substantive issues, increased confidence emerges. The
transparency generated is not ephemeral; it tends to spread to other aspects of
the relationship. The implementation of even modest agreements serves to
diminish recalcitrance on both sides. This is the same model of confidence
building that was successfully pursued by the superpowers during nearly five
decades of the Cold War. It is interesting, then, that some scholars and
practitioners would view agreements that merely build confidence but do not
resolve pressing substantive issues as the "junk food" of international
168. See, e.g., Mohammed Zaatari, Israel Threat Won't Stop Wazzani Project; Berri Vos to
Keep 'Liberating' Waters and Land Alike, DAILY STAR (Beirut), Sept. 5, 2002, transcribedin Foreign
Broadcast Information Service, Dec. 10: GMP 20020805000045 (on file with author) (quoting Israeli
officials as saying that Lebanon's pumping of water from springs which feed the Hasbani River could
spark war).
169. See, e.g., Benvenisti, supra note 65, at 396.
170.
See generally K.M. De Silva, Conflict Resolution in South Asia, I INT'L J. GROUP RTs.
247 (1994).
171. Miriam R. Lowi, Political and Institutional Responses to Transboundary Water Disputes
in the Middle East, ENVTL. CHANGE & SEC. PROJECT REP., Spring 1996, at 6.
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agreements. 17 2 The less apparent and evolving benefits of building confidence
may not make good news copy, but they can unceremoniously promote peace
on the ground.
If one accepts, as I do, the findings of research compiled by the
Transboundary Freshwater Dispute Database at Oregon State University that
the presence of general animosity among riparians is more closely linked to
water conflict than other factors, 173 then the case for viewing transboundary
river agreements as CBMs within a greater geopolitical context is especially
compelling. In the case of India, Pakistan, and Bangladesh, the introduction
and management of transboundary river agreements has successfully served to
build confidence and dampen military and political animosity between the
states. This model appears to offer benefits that might be reflected in other
and is likely a phenomenon in South America,
river agreements in South7 Asia,
4
Asia, and Africa as well.1
The role of transboundary river agreements in promoting sustainable
development extends beyond simple economic and environmental factors. In
South Asia, agreements have helped to strengthen political ties. The
agreements have value as vehicles to ameliorate tension and reduce the
likelihood of war. Although freshwater rivers, especially transnational ones,
are frequently understood to contribute to international conflict, in South Asia
the process and results of concluding transboundary river agreements have
had a positive ripple effect on the regional security environment. South Asian
diplomacy has been broadened through international river agreements by
inserting new ingredients into the geopolitical disputes in the following ways:
Assurance-the provision of information by states to other state
actors throughout the river basin;
(2) Verification-introducing both internal and external monitoring
mechanisms by state actors;
(3) Institution-building-building up capacities for sub-state, nonstate, and state actors throughout the basin;
(4) Process-building-developing new machinery for negotiations by
state and sub-state actors;
(5) Constituent-building-broadening the number and types of
participants-by sub-state, non-state, and state actors throughout
the basin; and,
(6) Principle development-introducing normative models into the
conflicts of riparian nations by sharing principles derived from the
rule of law, equitable use, notification, and prevention of harm.
(1)
172. Joseph S. Nye, Jr., Arms Control After the Cold War, FOREIGN AFF., Winter 1989/1990, at
42, 42-46.
173. See supra note 165.
174. Europe and North America have a predominance of democratic states, which liberal
theorists correlate to greater international peace and stability. See, e.g., BRUCE RUSSETT, GRASPING THE
DEMOCRATIC PEACE: PRINCIPLES FOR A POST-COLD WAR WORLD (1994). Moreover, their international
water agreements are, for the most part, more developed and have a longer history of success, while the
security environment is more stable and less threatening than on some other continents.
20031
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This model supports the intuition of the International Institute of
Sustainable Development (IISD) and the World Conservation Union (IUCN),
based on field research in Pakistan and elsewhere, that "just as environmental
change can contribute to conflict, conservation measures may contribute to
peace." 175 In recognizing the link, however, the IISD-IUCN acknowledge that
the connection between conservation and peace is "perhaps even more
difficult to demonstrate than the familiar environment-conflict link," and
argue that trying to prove that aggressive conservation practices would
inevitably reduce conflict is "impossible."'' 76 In their study of northern
Pakistan, their argument is an appeal to reason:
In the case of northern Pakistan, where relatively scarce resources are being
overwhelmed by population growth and unsustainable practices, it does not seem to us
implausible that the sustainable use of natural resources and the protection of vital
ecosystems would make it much easier to create or preserve robust livelihoods, thereby
reducing a prominent source of violence and tension.7
Relations between India and Pakistan have been cause for alarm for five
decades, most recently during the "nuclear crises" of the spring of 2002.178
One month after an attack on the Parliament of India in December 2001 by
five Pakistani terrorists, the former Indian high commissioner to Pakistan, G.
Parthasarathy, expressed popular Indian opinion that New Delhi should
abrogate the Indus Waters Treaty, saying "We should make it clear to
Pakistan that if it can bleed us in Jammu and Kashmir, we have the capability
to starve them."' 179 While the military and diplomatic officials of the two
nations traded threats throughout the spring of 2002, there was a sense of
relief among region analysts when the annually scheduled meeting of the
Permanent Indus Commission was not cancelled.1 80 At the time, the meeting
was the only high-level official contact between the two governments. There
was intense pressure from hardliners in India for New Delhi to abrogate the
Indus Waters Treaty, which would be seen by Pakistan as a threat to cut off
water at some point in the future. Many in India went even further, arguing
not only that the meeting should be skipped, but that India should abrogate the
treaty altogether.1 81 Instead, India conducted the commission meetings
175. Matthew & Zaidi, supranote 2, at 62-63.
176. Id.
at 63.
177. Id.
178. U.S. diplomacy was engaged to "decrease the tension" between the two nuclear-armed
regional powers. Luke Harding & Richard Norton Taylor, India Alert as Nuclear War Looms,
GUARDIAN, June 1, 2002, at P1, 2002 WL 21962134; Shanker, supra note 69, at A5.
179. Shishir Gupta, India's Response: Soft Options Now, Hard Battles Later, INDIA TODAY,
Jan. 14, 2002, at 42. The threat refers to the belief of one analyst that "the destruction ofjust seven dams
and barrages in Pakistan even by conventional weapons would lead to the 'total disruption of control
over irrigation in the Indus Valley,' and by implication, the destruction of the most important parts of
the Pakistani state." TELLIS, supra note 87, at 51-52 & nn.104-05 (citing VIJAI K. NAIR, NUCLEAR INDIA
137, 141 (1992)). Hydrologists in Pakistan warned that a repudiation of the treaty by India would result
in widespread famine. Fred Pearce, India Could Suck Pakistan Dry, NEW SCIENTIST, May 18, 2002, at
18.
180. Jyotsna Singh, Water Treaty Withstands Wars, BBC NEWS, May 30, 2002,
http://news.bbc.co.uk/2/hi/south-asia/2017059.stm.
181.
Id.
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18 2
because it wanted to "show the world that it is behaving responsibly."
Fulfilling its obligations under the Indus Water Treaty was a subtle but
effective vehicle for India, the upper riparian, to maintain diplomatic high
ground relative to Pakistan amid intense tensions over terrorists operating
from Kashmir. The completion of the Indus Waters Treaty has influenced
Indian-Nepalese relations as well, because the success of the Indus agreement
led to the resolution of a river dispute with Nepal over the River Mahkali in
1997.183
Article VI of the Treaty makes extensive use of a detailed verification
regime. 84 Both states are required to regularly exchange "daily gauge and
discharge data relating to the flow of the rivers," daily reservoir extractions or
85
releases, and daily withdrawals and escapages from all canals. These data
may be requested by the other party as frequently as on a daily basis, if
available.' 86 In setting up a Permanent Indus Commission, the two nations
created a stable office through which this data may be submitted and
received. 87 The Commission is comprised of a permanent Commissioner for
Indus Waters from each state. It meets once a year, alternating meeting
locations between India and Pakistan.18 8 The Commissioners are not low-level
technical functionaries; although normally from an engineering background,
they hold an influential office accorded diplomatic immunity by the other
state. 89
The Commissioners, accompanied by a limited staff, may take an
extensive tour of the rivers every five years. They are also required to host ad
hoc tours of works or sites promptly upon request from the Commissioner of
the other state. Adopting this unscheduled on-site monitoring option in early
2003, India permitted Pakistani engineers to inspect a 450-megawatt
hydroelectric dam located at the village of Baglihar on the Chenab River. 90
This dam was of particular concern to Pakistani leaders since Pakistan is
entitled to the entire natural flow of the river under the 1960 agreement. By
employing a classic scheduled and ad hoc verification regime, India and
Pakistan have made their activities more transparent. In the case of the
Baglihar works on the Chenab, the parties still do not agree,' 9' but Pakistan
has at least had the opportunity to examine the facilities on-site. By utilizing
both assurance and verification, the parties deal directly with the greatest
cause of suspicion and distrust-a lack of information. Moreover, by coupling
verification with assurance, the states are bound to the machinery and routine
of information sharing.
182. Id.
183. Sanjoy Hazarika, South Asia: Sharing the Giants; Water Sharing of the Indus, Ganges and
BrahmaputraRivers, UNESCO COURIER, Oct. 1, 2001, at 32-33.
184. Indus Waters Treaty, Sept. 19, 1960, art. VI, India-Pak., 419 U.N.T.S. 125.
185. Id.
186. Id.
art. VIII.
187. Id.
188. Id.
189. Id.
190. India-Pak Agree to Resolve Water Issue, INDIA TIMES, Feb. 6, 2003,
http://timesofindia.indiatimes.com.
191. Khaleeq Kiani, Pakistan Demands Inspection of Baglihar Power Project,DAWN, Feb. 5,
2003, available at http://www.dawn.com/2003/02/05/top4.htm (last visited Apr. 26, 2003).
20031
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In February 1999, the two nations ventured to expand their relations by
entering into the Lahore Declaration to enhance peace and security in the
region. The Lahore initiative was launched when Indian Prime Minister
Vajpayee visited Pakistan and the two states signed an agreement that pledged
bilateral consultations on security concepts and nuclear doctrines, with a view
toward developing confidence building in both the nuclear field and
conventional fields aimed at conflict avoidance. 192 Only two months after the
Lahore Declaration, however, the spirit of cooperation was ruined by conflict
in the Kargil area of Jammu and Kashmir. The next step is to convert the
memorandum of understanding into a verifiable CBM on nuclear and missile
management.
Turning from India and Pakistan, we next examine the confidence
building effects of the Ganges Treaty. For Bangladesh and India, the
animosity is less, and the advantages gained by the Ganges Treaty have
transformed the relations between the two nations.
Water is the key to economic development and bilateral cooperation
between India and Bangladesh. 193 Deep mutual suspicion drives Bangladesh's
foreign relations with India regarding water, so the issue of international
freshwater on the subcontinent has 194
historically tended to aggravate, rather
ire.
nationalist
and
ethnic
soothe,
than
Like the Indus treaty, the Ganges agreement has served to dampen
geopolitical tensions by offering a framework and forum for basin-related
issues between India and Bangladesh concerning shared river resources. 95
Importantly, Bangladesh, which has tended to view India as striving for
hegemony, has successfully implemented an international river agreement
with India that injects a sense of fairness and equality into the diplomacy
between a smaller state and New Delhi. The agreement is credited with
transforming the relationship between the two countries:
Prior to [the] accord, Bangladesh had felt politically unable to meaningfully discuss and
conclude agreements with India pertaining to any river other than the Ganges, let alone
matters unrelated to water resources such as transit and wider economic cooperation,
until the Farakka issue was first settled 1or96 clearly on the way to settlement. . . . The
Ganges treaty has now unlocked all doors.
In welcoming the Prime Minister of Bangladesh to India for the signing of the
treaty, the External Affairs Minister declared that the treaty heralded a "new
relationship" between the two nations concerning security, trade, and other
areas.197 The "entirely new phase of cooperation" was ushered in with
immediate pledges on a range of subjects, including the extension of one
billion rupees worth of commercial credits to expand trade between the two
192. See The Lahore Declaration, Feb. 21, 1999, http://www.indianembassy.org/
SouthAsia/Pakistan/lahoredeclaration.html.
193. Jairam Ramesh, Water is the Key, INDIA TODAY, Apr. 10, 2000, at 39.
194. Id.
195. Surya P. Subedi, Hydro-Diplomacy in South Asia: The Conclusion of the Mahakali and
Ganges River Treaties, 93 AM. J. INT'L L. 953, 953-54 (1999).
196. Verghese, supranote 131, at 172.
197. Statement by Shri I.K. Gujral, External Affairs Minister in the Rajya Sabha (Dec. 12,
1996), http://www.indianembassy.org/policy/Foreign Policy/ganga.htm.
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nations. 198 An Indian Embassy report on foreign relations for 1997-1998 also
credited the landmark treaty with "greatly enhancing" relations between India
and Bangladesh, including its leading to a follow-on visit to Bangladesh by
the Indian Prime Minister in January 1997 to consolidate the new
relationship.199 Bangladesh also saw the treaty as the start of a new
relationship, viewing Indian substantive compliance as the primary metric for
whether the agreement can build confidence between the two rivals. 200 By
scrupulously adhering to the treaty, and by delivering water according to the
annex schedules set forth in the treaty during the dry season, India adds
confidence building to the "benefit multiple."
By setting out a schedule of river flows, the Ganges Treaty provides
assurance to the weaker power that equitable division of the river is the target.
Verification, by introducing both internal and external monitoring
mechanisms by state actors, is embedded in the agreement as well. The parties
also commit to be guided by "the principles of equity, fairness and no harm to
either party" in their efforts to conclude water-sharing agreements with regard
to the fifty-five other rivers shared by the two states. Such principles, the
hallmark of CBMs, tie each state to the same objectives, forcing them to
develop their positions within the confines of the agreed lexicon. Moreover,
the "mutual accommodation" called for in the treaty successfully elevates the
thinking on both sides from the technical to the political.2 °2 Tightening and
strengthening cooperation for managing these additional tributaries may have
a normalizing effect on the language of diplomacy in the region by exercising
and operationalizing a mutual terminology.
C.
Are TransboundaryRiver Agreements Effective?
In the case of the Indus and the Ganges, procedural discussions were
extensive despite the lack of agreement on substantive issues. While
substantive concerns such as water quality, water scarcity, and river flow rates
remain unresolved, procedural discussions addressed regularizing state
practice and preventing surprise regarding damming and flow rates,
introducing jointly sponsored programs to implement sustainable fishing and
hunting practices, installing realistic environmental discharge controls and
measures, and observing river traffic and non-navigational usage. This
approach borrows from the "institutionalist" school of international relations
theory,2 °3 and was first identified as key to tempering transboundary river
disputes by Eyal Benvenisti:
198. Id.
199. See Embassy of India, India's Neighbors, available at
http://www.indianembassy.org/policy/Foreign Policy/sasia.htm (last visited Apr. 26, 2003).
200. A.T.M. Shamsul Huda, Constraints and Opportunities for Cooperation Towards
Development of Water Resources in the Ganges Basin, in SUSTAINABLE DEVELOPMENT, supranote 103,
at 46, 54.
201. Bangladesh-India Treaty on Sharing of the Ganges Waters at Farakka, Dec. 12, 1996, art.
IX, 36 I.L.M. 519, 526; see also Nishat, supra note 103, at 91; Ramesh, supra note 193, at 39.
202. Verghese, supranote 131, at 171.
203. Institutionalists generally accept the assumptions of Realists that states exist in an anarchic
international system, but rather than dismissing international cooperation, they focus on the functional
benefits of rules and institutions. ROBERT J. BECK ET AL., INTERNATIONAL RULES: APPROACHES FROM
2003]
SustainableDevelopment Is Security
[The] effectiveness [of transboundary river agreements] lies in the establishment of
frameworks for the exchange of information, mutual monitoring and frequent
interactions. A forum that intensifies interaction, increases the number of exchanges, and
reduces the intervals between them can develop stable mutual expectations regarding
both bargaining costs and uncertainty about the value of
future behavior and reduce
20 4
proposed transactions.
Great progress may be made just by accepting the collateral benefit of nonbinding agreements regarding river management. This very modest but often
more achievable success then begins to lay institutional groundwork that
gently and slowly helps to ease geopolitical turmoil. Rather than permitting
distrust and suspicion over river resources to fuel geo-strategic conflict,
transboundary river agreements fashion competition into workable solutions
by factoring out uncertainty, surprise, and suspicion. Confidence building
mechanisms among the parties can, over time, influence the parties to
negotiate and implement a common river agreement project that builds
security through mutual benefit.
Any type of agreement can build confidence among rivals if it serves to
build common ground. This certainly does not mean that such an agreement
will prevent war, but it often represents a respite from conflict with respect to
one of myriad issues at stake. CBMs cordon off limited areas of agreement,
thereby encouraging parties in conflict to search for areas of commonality. For
example, during 2000 and 2001, when the Taliban and the Northern Alliance
were at the height of their war for control of Afghanistan, virtually the only
issue the two groups shared in common involved the creation of an
Afghanistan Museum in Switzerland.2 °5 Still, the pettiness exhibited by both
parties over even such a noncontroversial goal highlights one of the foremost
' 20 6
difficulties of CBMs-that they seek to pacify "the dog that didn't bark.
While full-fledged wars tend to attract extensive media coverage and draw in
outside parties to assist in stopping the conflicts, tensions surrounding
transboundary river disputes often simmer for decades, little noticed by the
world at large. Without the eruption of a major conflict to capture media
attention and third-party intervention, parties to transboundary river conflict
have less incentive to reach agreements.
It is impossible to measure empirically the effectiveness of river
agreements as CBMs, just as it is impossible to attribute empirically the
success of the CBMs that were a feature of the Cold War arms control
apparatus solely to the absence of major war between the United States and
the Soviet Union. Nonetheless, examination of the experiences of the Indus
and Ganges agreements suggests that introducing a level of transparency and
166 (1996). One pioneer of the institutionalist
approach is Kenneth Abbott, who focused on the role of "assurance" and "verification" in major arms
control agreements. Abbott, supra note 35, at 4; see also Anne-Marie Slaughter et al., InternationalLaw
and InternationalRelations Theory: A New Generation of InterdisciplinaryScholarship, 92 AM. J. INT'L
L. 367, 379-81, 391-93 (1998). For a critical view of institutionalist theory, see John J. Mearsheimer,
The False Promise of InternationalInstitutions, INT'L SEC., Winter 1994/95, at 5, 8.
204. Benvenisti, supra note 65, at 412.
205. Kristen M. Romey, The Race To Save Afghan Culture, ARCHEOLOGY, May/June 2002, at
18, 20.
206. Sucharipa-Behrmann & Franck, supra note 15, at 497.
INTERNATIONAL LAW AND INTERNATIONAL RELATIONS
THE YALE JOURNAL OF INTERNATIONAL LAW
[Vol. 28:465
confidence into geostrategic resource competition strengthens regional
security. CBMs unleash a cascading advantage in which the creation of one
CBM, or a modest series of CBMs, leads to an ever-expanding circle of issues
that are legitimate for bilateral discussion. The agreements generate
confidence between gropolitical rivals by expanding their political
relationship. The spillover benefits of transboundary water management have
been most noticeable in the realm of economic development; there are
security benefits as well. International, bilateral, or multilateral cooperation is
a prerequisite for developing conditions for the spillover of benefits:
[T]he joint development of transboundary river resources can act as a catalyst for
regional economic cooperation in sectors other than water, as is seen in the potential
This is as a result of a variety of factors, not least of
development of the Nile Basin....
which is the 'knock on' effect of the trust and cooperation which has to be built 20between
7
countries in order to reach agreement on the management of a common resource.
The Indus and Ganges agreements require active support and long-term
commitment from both nations' top-level political leadership; they both are
dependent upon the mobilization of scientific and technical expertise; and
each requires domestic governmental structures that are capable of effective
bilateral and multilateral cooperation and collaboration. 20 8 This pattern was
observed after the conclusion of the Indus Treaty, which nourished other
bilateral talks, including two near-breakthroughs to resolve the volatile
Siachen Glacier issue. The 1998 Indian proposal called for bilateral
monitoring and the establishment of a hotline between divisional
20 9
commanders, as well as assurances to authenticate existing troop positions.
war was spoiled at the last minute by
Unfortunately, an agreement to end 2the
10
political pusillanimity on both sides.
Evidence of the efficacy of transboundary river agreements as CBMs is
largely anecdotal. The agreements in South Asia have contributed to the
transparency of India's intentions and actions for the states surrounding India,
reducing the long-held suspicions that these states have toward New Delhi. At
the same time, India has benefited from assurances from the other nations,
particularly Nepal and Bangladesh, which New Delhi fears may be able to
effectively leverage their geographic advantage as an upper riparian against
India by interrupting river water flow.
The agreements build constituencies by broadening the numbers and
types of participants throughout the basin, including governments and nongovernmental organizations. The negotiations tend to include an array of
207. LEN ABRAMS, WORLD COMM'N ON DAMS, CONTRIBUTING PAPER: DAMS IN THE CONTEXT
OF TRANSBOUNDARY/INTERNATIONAL WATERS 1, 1 (2000), http://www.damsreport.org/docs/kbase/
contrib/ins224.pdf.
208. Kliot et al., supra note 115, at 308.
209. The Siachen Glacier, nestled between the Karakoram and Saltora mountain ranges in
Kashmir, is seventy-six kilometers long and two-to-eight-kilometers wide. Since 1984 when India
launched Operation Meghdoot to bring most of the area under Indian control, the two nations have
engaged in ongoing artillery duels and skirmishes high in the ice. D. Suba Chandran, Delhi Round of
Indo-Pak Talks-I Siachen, INST. PEACE & CONF. STUD., Nov. 18, 1998 (on file with author). For the
view of a journalist who spent eight weeks living at Indian and Pakistani army outposts located on the
glacier, see Kevin Fedarko, The Coldest War, OUTSIDE, Feb. 2003, at 38, 98-99.
210. Ramesh, supra note 130.
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scientific, technical, environmental, ecological, legal, administrative,
economic, and military interests. The involvement of all of these interests has
a progressive effect, helping to build an integrated approach to civil
government and foreign relations. 2 11 Bringing together a network of mid-level
regulators, resource and economic officials, educators, scientists, diplomats,
and military officers develops a dense web of relationships across the border.
This notion of liberal theory analyzes state behavior "primarily as a function
of the constraints placed on state actors by being embedded in domestic and
transnational civil society. 212 These relationships constitute a new
bureaucratic transgovernmental order, a phenomenon Professor Anne-Marie
Slaughter has termed the "Real New World Order., 21 3 Within the paradigm of
the "Real New World Order," ad hoc transgovernmental networks help to
create a new world order ideal by closely integrating states and by expanding
cooperation among government officials, non-governmental organizations,
and regional actors at all levels. While serving to construct a "new" South
Asian order of civil relationships, the Indus and Ganges agreements continue
to spin off substantive economic, environmental, and security benefits that
promote sustainable development. These agreements have influenced India,
despite its vantage of political and military strength, to deal with its neighbors
largely on the basis of equality. New Delhi, situated both in the enviable
position of upstream riparian as well as lower riparian, has had to
simultaneously implement agreements from both perspectives. In doing so, it
has reduced regional suspicion and avoided inflaming regional insecurities.
These findings comport with the methods of a United Nations University
(UNU) workshop to exploit unconventional advantages within the existing
system as a strategy to prevent conflict. The UNU workshop concluded that
"mainstreaming means working with-and within-existing instruments and
mechanisms. ' '2 4, Conflict prevention strategies must also be developed, such
that "[p]reventive thinking is incorporated into existing structures, institutions,
processes-into the daily work of states, nonstate actors and
intergovernmental organizations."
211. Any help in assisting non-democratic states move toward democracy is counted as a
benefit toward realizing world peace. Democracies rarely, if ever, wage war against on another. See,
e.g., RUSSETr, supra note 174, at 4 (1994) ("[A] striking fact about the world comes to bear on any
discussion of the future of international relations: in the modem international system, democracies have
almost never fought each other."). This "democratic peace proposition" is borne out by empirical
research by Professor Rudolph Rummel of the University of Hawaii. See RUDOLPH RUMMEL, POWER
KILLS: DEMOCRACY AS A METHOD OF NONVIOLENCE (1997). Professor Rummel's convincing case for
democracy as a mechanism for preventing major war is set forth in detail on his website at
http://www.hawaii.edu/powerkills (last site revision Feb. 23, 2003).
212. Anne-Marie Slaughter Burley, InternationalLaw and InternationalRelations Theory: A
Dual Agenda, 87 AM. J. INT'L L. 205, 227 (1993); see also id at 228 ("All governments represent some
element of domestic society, whose interests are reflected in state policy.").
213. See generally Anne-Marie Slaughter, The Real New World Order, FOREIGN AFF.
Sept./Oct. 1997, at 183.
214. DAVID CARMENT & ALBRECHT SCHNABEL, BUILDING CONFLICT PREVENTION CAPACITY:
METHODS,
EXPERIENCES,
NEEDS
18 (U.N.U.
Workshop
Seminar
Series
Report,
Feb.
2001),
http://www.unu.edu/p&g/conflict/cp-capacity.pdf. The purpose of the workshop was to develop and
implement conflict prevention training tools for regional and international organizations.
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VI.
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CONCLUSION
Despite the inhospitable hydro-political climate, India signed the Indus
Waters Treaty with Pakistan in 1960 and the Ganges Treaty with Bangladesh
in 1996. These two agreements have established a framework through which
much has been-and will be-accomplished. The value of these two
agreements extends largely from their procedural compliance, institution
building, and the introduction of assurance and verification into the relations
between the regional hegemon and her neighbors. For Bangladesh, substantive
compliance by India is the key to maintaining good relations between Dhaka
and New Delhi. From the standpoint of resource and environmental
cooperation, there is a vast arena of cooperation that still remains to be opened
among these states.
Although achieving international agreement on transboundary river
access and resources can be difficult-typically pitting upper and lower
riparians against one another-drafting and implementing transboundary river
agreements has been less difficult than obtaining a comprehensive regional
peace agreement. Viewed as a confidence and security building measure
within the greater strategic context, international river agreements serve as an
effective component of the overall regional security framework to reduce
tension and prevent war. River agreements may or may not resolve the
complex structural economic and resource problems that aggravate tensions
along intemational rivers. Regardless, in South Asia they serve as an
important component of state-to-state civil government relations.
The transboundary river agreements for the Indus and Ganges Rivers fill
a role in developing bilateral institutions on the subcontinent that would
otherwise remain unmet. The South Asian Association for Regional
Cooperation (SAARC), for example, was established in the 1980s to provide a
forum for discussion on trade. Contentious topics like transboundary water
resources were totally excluded from its purview. 21 In this sense, the river
agreements on the subcontinent have a well-established history of helping to
peel back contributing causes of conflict by promoting cooperation through
civil society and pluralistic government. Negotiating international river
agreements tends to involve scientific, environmental, and community groups
as well as regime elites within the basin nations, which promotes
democratization peacefully over time. Democratic and democratizing states, in
turn, are more likely to fuel greater regional cooperation. 216 The agreements
build confidence and enhance international security by creating effective
regional civil government cooperation, developing governing mechanisms,
building and extending a history of negotiation, sharing resource management,
and extending communication and planning between rivals.
Instead of waiting for an overall political breakthrough on issues of
"high politics" prior to attempting progress on transboundary river issues, the
same procedural mechanisms that are employed in fashioning river
agreements provide one element of a foundation on which to build strategic
215.
Hazarika, supra note 183, at 32.
216. John Norton Moore, Toward a New Paradigm:Enhanced Effectiveness in United Nations
Peacekeeping, Collective Security and War Avoidance, 37 VA. J. INT'L L. 811, 823-25 (1997).
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stability. The concept of integrating transboundary river agreements as one
element of an overall peace process in regional conflict fuses the issue of
freshwater management to the greater security question. This paradigm, which
has not been widely implemented, views transboundary water agreements as
one component of a more stable regional security framework, rather than as a
center-stage environmental treaty. The environmental benefits are tertiary to
the geopolitical benefits.
This approach introduces a new tool for addressing persistent regional
conflict in South Asia-and potential conflicts elsewhere-by applying a
time-tested formula that has been effectively employed by the superpowers
and the United Nations. Regional conflicts often appear to be intractable, with
final resolution a distant and elusive goal. During the superpower rivalry,
successful work and developing success on CBMs ameliorated suspicion and
helped to prevent the spiral toward readiness and mobilization that often
precedes war. Similarly, negotiating and implementing transboundary river
agreements in South Asia has served the same purpose. In each case,
agreements that were more technical and lacking the political charge of
political and military settlements made progress on resolving issues in a civil
forum governed by the rule of law. International river agreements in South
Asia create fertile ground for further development, while forestalling and even
reversing water resource damage on the subcontinent. By focusing on river
management as a collateral issue to the underlying conflict, the nations of
South Asia can achieve realistic cooperation on the underlying environmental
and economic development issues while building overall confidence.
Transboundary river agreements have served as a launching platform for
rivals to begin thinking about constructing confidence building measures into
other areas of their existing relationship-including, eventually, the military
sphere. It is important to recall that in achieving the Indus Waters Treaty,
India and Pakistan were edged toward agreement by considerable diplomatic
influence of the United States and the World Bank. Agreement was reached
only after eight years of negotiation. The United States, and other nations and
international organizations, can build on this history by encouraging the two
nuclear-armed states to go beyond their existing CBM transboundary river
regime and to enter into discussions that involve conventional and nuclear
military forces.2 17
The strongest riparian state often takes unilateral action to control the
international river basin. This has been the case with India, as with Brazil,
Egypt, and Israel, in their respective basins. In each case, the strongest power
prefers to deal with its neighbors on a bilateral-rather than multilateralbasis. 218 Water scarcity is driving new models of national security, however,
that include interdependency. Interdependence through water sharing and
217. India is already speaking the vocabulary of confidence building in relation to its nuclear
systems. The "August 17, 1999 Draft Nuclear Doctrine" envisions both assurance and verification, and
seeks the creation of nuclear risk reduction centers and other confidence building measures with
Pakistan. The doctrine is reproduced by the Arms Control Association and is available at
http://www.armscontrol.org/act/1999 07-08/ffja99.asp. See also Jairam Ramesh, India and Pakistan
Will Come Together Only with US. Prodding,INDIA TODAY, Dec. 24, 2001, at 53.
218. ELHANCE,supra note 73, at 121.
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infrastructure networks increases the flexibility and capacity of states
throughout the basin to better respond to exigencies of nature such as flood
and drought. 219 This process of reducing uncertainty and building
predictability is a hallmark of classic CBMs, and is what makes transboundary
rivers effective confidence building measures. Throughout the process of
reaching transboundary river agreements, there is some temptation to build an
ever more comprehensive and ambitious agreement by continually pushing
the parties beyond their comfort zone. Although this temptation is
understandable as an effort to both push and pull parties together, it is
counterproductive. The pursuit of transboundary river agreements to build
confidence is not as immediately gratifying as a comprehensive military
agreement. The challenge, then, is to obtain as much in an agreement as
possible, without insisting on a comprehensive (but unrealistic) basin plan that
addresses each source of contention. A comprehensive plan should not be
pursued at the expense of a more easily obtainable but limited design. The
history of CBMs is that they tend to beget more sophisticated and more
inclusive CBMs. The immediate need in most areas of potential conflict is to
first lay the foundation of agreement by building entry-level confidence
among the parties. From that foundation, more comprehensive agreements can
obtain.
More non-governmental organizations are realizing that water is better
viewed not as a problem to be solved among hostile co-riparians, but as an
opportunity to enlarge basin relationships. 22 0 The Stockholm International
Water Institute has begun thinking of approaching water conflicts from a
position of "hydrosolidarity." 22' Water resources in international river basins
serve as a source of contact between people for social and economic
cooperation and development, and as a source of building mechanisms for
peace and regional stability.
These relationships begin to create a realistic sense of genuine
confidence among the parties. Transparency generates grounds for true
confidence: "Facing a potentially hostile enemy, what one wants is not to be
confident, but to be as confident as the true state of affairs justifies. What one
wants is grounds for confidence, or evidence that confidence is justified. 22 2
Transparency opens circuits that certify veracity and verify compliance
between the underlying regime and related governments.223 Without the drama
associated with arms reduction agreements, CBMs have quietly but
profoundly reduced international tension and strengthened bilateral and
219. Priscoli, supra note 74, at 627.
220. International Round Table: Transboundary Water Management (Sept. 27-30, 1998),
http://www.thewaterpage.com/berlinrecom.htm.
The so-called "Berlin Recommendations"
emerged
from the International Round Table at Villa Borsig, Berlin, which was a collaborative effort of the
German Federal Ministry for Environment, Nature Conservation and Nuclear Safety; the German
Federal Ministry of Economic Cooperation and Development; the German Federal Foreign Office (AA);
the World Bank; and the Development Policy Forum of the German Foundation for International
Development. The Round Table provided a forum for selected representatives of international lake and
river commissions to identify measures that could better support their work.
221. MALIN FALKENMARK, STOCKHOLM INT'L WATER INST., WATER SECURITY FOR MULTINATIONAL WATER SYSTEMS (2001) (on file with author).
222. Thomas C. Schelling, Confidence in Crises, INT'L SEC., Spring 1984, at 56.
223.
Hoist, supra note 11, at 5.
SustainableDevelopment Is Security
2003]
multilateral confidence among superpowers and regional rivals alike. Thus,
the migration of CBMs into the realm of transboundary river disputes recasts
old resource conflicts with new tools, and in doing so begins to transform
regional security politics. The agreements may do no more than strengthen the
capability of societies to deal with their disagreements through consultative
mechanisms and in a peaceful manner.
That may very well be
accomplishment enough.
224.
Schmieg, supranote 96, at 11.